Correct head of income - gain on sale and purchase of shares - normal business profit or short term capital gain - shares by way of investment were held for period varying from one day to more than 100 days - whether the tribunal was right in reversing the order passed by the CIT(A) holding that the gain made by the assessee on sell and purchase of shares was business profit and not short term capital gains? - HELD THAT:- As decided in M/S. GYAN TRADERS [2022 (10) TMI 47 - CALCUTTA HIGH COURT] transaction is not necessarily in the nature of trade because the purchase was made with the intention of resale. Further it was pointed out where the purchase of any article or of any capital investment, for instance shares is made without the intention to resell it at a profit, the resale under such changed circumstances would only be realization ....... + More

Validity of reopening of assessment u/s 147 - notice issued u/s 148A - non- filing of ITR and escapement of income - As per assessee reason ascribed by the Assessing Officer is not only bereft of application of mind but also the same is outcome of blameworthy preconceived approach - as argued AO has failed to address the core issue as to whether there was requirement of furnishing return with reference to Section 139(4C)(e) for Assessment Years prior to 2016-17 - HELD THAT:- The petitioner has ample opportunity to agitate issues before the Assessing Officer. Therefore, this Court holds entertainment of the writ petition at the stage of notice would be premature. Doing so would frustrate the tax administration and adjudication process. This Court is alive to the fact that the statute under consideration, viz., the IT Act and rules framed t....... + More

Reopening of assessment u/s 147 - order passed under Section 148A(d) based on material available on record or not? - in response to the notice the petitioner-assessee has filed its revised return in Form ITR-6 - HELD THAT:- As in the instant case, the petitioner has not furnished objection to the notice issued under Section 148A of the IT Act. Therefore, this Court finds that no case is made out by the petitioner for interfering with the issue of notice under Section 148 by the Adjudicating Authority after taking decision to initiate proceeding on passing order under Section 148A(d) of said Act. Assessing Officer reached the conclusion ‘reason to believe’ and approval was accorded by the learned Principal Commissioner of Income-tax for reopening of assessment thereby giving the assesse an opportunity to rebut and meet the poin....... + More

Penalty u/s. 271D - amount paid by the Directors / Shareholder towards share capital and unsecured loans in the form of cash - HELD THAT:- We are of the considered view that the amount paid by the Directors / Shareholder towards share capital and unsecured loans in the form of cash does not attract the provisions of section 269SS of the Act and penalty U/s. 271D cannot be levied on the same. We therefore find no error in order of the Ld. CIT(A) and hence no interference is required in the order of the Ld. CIT(A) and dismiss the grounds raised by the Revenue. Nature of income - agricultural income or income from other sources - AO allowed a sum from sale of coconut and bananas but disallowed a sum from sale of Eucalyptus - HELD THAT:- As noted from the paper book that the assessee has been regularly admitting the agricultural income in the....... + More

Reopening of assessment u/s 147 - reassessment proceedings initiated against a dead person - HELD THAT:- assessee died much prior to initiation of reassessment proceedings, therefore, the action initiated by the Assessing Officer is void ab initio. No doubt that the death of assessee has not come in the notice of Assessing Officer, however, it is an admitted fact that the appellant has very well informed the ld. CIT(A) in writing that her husband has died on 12/5/2013. The ld. CIT(A) despite recording such fact has not given any finding nor has directed the Assessing Officer to take remedial action. Thus, I respectfully following the decisions pf Hon’ble High Courts hold that reassessment proceedings initiated against a dead person is void ab initio and consequent action initiated and completed which is affirmed by ld. CIT(A) is set aside and assessment order is quashed. In the result, ground raised by the appellant is allowed.

Rectification of mistake u/s 154 - disallowance of additional depreciation - Asset used less than 180 days - CIT-A deleted the disallowance of additional depreciation made by the AO while passing the order u/s 154 of the Act. Grounds raised by the Revenue are rejected.HELD THAT:- No infirmity in the order passed by the Ld. CIT(A) in deleting the disallowance of additional depreciation made by the Assessing Officer while passing the order u/s 154 of the Act. Grounds raised by the Revenue are rejected.

Taxability of entertainment tax subsidy received by the assessee - Nature of receipts - HELD THAT:- While considering the nature and character of entertainment tax subsidy received by multiplexes/cinema hall owners under the very same Scheme the Hon’ble Apex Court in case of CIT Vs. Chapalkar Brothers [2017 (12) TMI 816 - SUPREME COURT] has held that the entertainment tax subsidy received is in the nature of capital receipt. In fact, in assessee’s own case in assessment years 2008-09 and 2009- 10 [2013 (6) TMI 73 - BOMBAY HIGH COURT] Hon’ble Bombay High Court while dismissing the appeals filed by the Revenue has upheld the decision of the Tribunal holding that the entertainment tax subsidy received by the assessee is in the nature of capital receipts. Further, in case of CIT vs. Bougainvillea Multiplex Entertainment Cent....... + More

Estimation of income - bogus purchases - bogus purchases by applying the provisions of section 44AD - HELD THAT:- CIT(A) has estimated the net profit at 8% as prescribed in section 44AD of the I.T. Act to be reasonable in the case of civil contractors. The justification given by the Ld.CIT(A) in deleting the said addition made on account of bogus purchase and also on the estimation of net profit @8% as per the provisions of section 44AD, is satisfactory. - Decided against revenue. Addition u/s 68 - unexplained cash credit (loan) - HELD THAT:- As assessee has furnished required details to substantiate its claim pertaining to the addition made under section 68 - CIT(A) has also dealt with this issue extensively. On this note, we do not find any infirmity in the order of the Ld.CIT(A) in deleting the said addition made under section 68 of th....... + More

Disallowance of u/s 43B - delay/default in depositing of the amounts paid for DVAT, Service Tax, TDS and Mumbai VAT -or the reason that in the tax audit report, the amount was reflected in Clause 26(i)(B)(b) which was with respect to liability u/s 43B not paid on or before the due date - HELD THAT:- Assessee has placed on record the date of the payments of the various amounts and has demonstrated that all the payments have been made before the due date of filing of return of income. The contention of the assessee of the amount being paid before the due date of filing of return has not been controverted by Revenue. Considering the totality of the aforesaid facts coupled with the fact that the Chartered Accountant of the assessee has also given Certificate that all the amounts have been paid before the due date of filing of return of income....... + More

Reopening of assessment u/s 147 - addition on account of alleged cash investment in property - HELD THAT:- CIT(A) on comparing the signature of assessee on seized material with the signature of Income tax return of assessee and held that assessee is the same person. No opportunity was given to the assessee to explain his version on such comparison. We find that the stand of the assessee throughout the proceedings is that the assessee has not relation nor any business transaction with Baldevbhai P Patel. We find that said Baldevbhai P Patel filed Petition under chapter XIXA of Income tax for settlement of his case and took similar plea as stated in his statement before survey team that assessee is one of his partner in making investment in land. However, such statement of assessee was not accepted by ld Income Tax Settlement Commission and....... + More

Exemption u/s. 11 & 12 - appellant was granted registration U/s. 12AB - benefit of Fourth proviso to section 12A - Whether income of the appellant is eligible for exemption u/s. 11 & 12 of the Income Tax Act, 1961 since the appellant was granted registration U/s. 12AB of the Act vide order dated 21/3/2022 and as per the provisions of section 12A of the Act the benefit shall extend to all pending assessment proceedings? - HELD THAT:- In the instant case, the assessment / reassessment has been completed much earlier to the date of registration u/s.12AB of the Act which is dated 21/3/2022 and therefore the benefit of Fourth proviso to section 12A of the Act was not available to the pending appeal proceedings before the Tribunal. Therefore, the Additional Ground raised by the assessee is dismissed. Validity of initiation of proceeding....... + More

Assessment of trust - Addition u/s 68 - donation received by the assessee religious trust from various donors - assessee has explained the source of cash and also relying on the provisions of Section 115BBC (2) - HELD THAT:- Facts show that assessee is religious trust. In the case of the assessee trust, the addition was made u/s 68 of the Act of the sum, which is already disclosed as income by the assessee trust in the nature of donation. In this case, the survey was conducted by the income tax department. The donation received by the assessee religious trust from various donors is reflected in the donation receipts, which were impounded during survey proceedings. The amount of donation received is treated as receipts in the Income and Expenditure account as voluntary contribution. According to the provisions of Section 68 if any sum is f....... + More

Validity of notice issued u/sec 274 r.w.s 271(1)(c) - whether the penalty is levied for concealment of particulars of income or furnishing inaccurate particulars of income? - HELD THAT:- Notice issued for levying of penalty is invalid and the A.O. has not applied his mind and non striking of charge in the penalty notice i.e. whether the charge is for concealment of income or furnishing of in accurate particulars of income. We find the Jurisdictional Honble High Court of Bombay in Mohd Farhan A Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT] has dealt on this disputed issue of not striking off charge in the penalty notice would vitiate the penalty proceedings. Appeal of assessee allowed.

Deduction u/s 10AA - Disallowance for the reason that the assessee had filed return of income belatedly and not within the time limit prescribed u/s 139(1) - AO has disallowed the claim of deduction u/s 10AA for the solitary reason that the return of income was not filed within the specified due date u/s 139(1) - HELD THAT:- Hon’ble High Court of Delhi has applied this doctrine of interpretation of Scott R.Bayman v. Commissioner of Income-tax, Delhi [2012 (8) TMI 646 - DELHI HIGH COURT] and referred to the above mentioned judgment of the Hon’ble Apex Court. When the Legislature has omitted such a restriction in section 10AA in its wisdom, it is not for the A.O. nor the CIT(A) to prescribe such a conditionality and impose it on an assessee. Therefore, the denial of the exemption on the ground of not filing the return of income ....... + More

Estimation of income - Addition u/s 68 - bogus and false entries or undisclosed income of the assessee which was induced in the books under the garb of cash sales and advance from customer and receipt from debtors - addition considering the same as part of turnover and applying same rate of G.P. @ 2.59 % of cash sales which was added by AO u/s. 68 of the disbelieving the cash sales recorded by the assessee on the day of demonetization - CIT-A deleted the addition - HELD THAT:- As revenue not prove the sale made by the assessee which is executed after giving the goods to the customer, duly reflected in the invoice issued, assessee having sufficient stock in the books, sales is duly reflected in the books of accounts supported by payment of VAT. Therefore, the contention of the revenue based on the facts and circumstance of the case is not ....... + More

Addition u/s 234E - Intimation u/s 200A of the Act before 01.06.2015 i.e. before the amendment brought into effect from 01.06.2015 in section 200A - HELD THAT:- As decided in M/s. Keshav Industries Pvt. Ltd. [2020 (7) TMI 812 - ITAT INDORE] wherein fee u/s 234E of the Act was levied in the statements processed u/s 200A of the Act before 01.06.2015 i.e. before the amendment brought into effect from 01.06.2015 in section 200A of the Act thereby enabling the revenue authorities to raise demand in respect of levy of fees u/s 234E CIT(A) erred in confirming the levy of late fees u/s 234E of the Act by the assessing officer. Accordingly findings CIT(A) in all these 10 appeals are reversed as we have recently taken a considered view against the revenue on earlier orders of Ld. CIT(A) wherein the identical orders by respective CIT(A) were passed ....... + More

Undisclosed rental income - primary arguments of the assessee are two-fold: firstly, on merits, the assessee submitted that the rental income did not accrue to the assessee in the first place, since the same was siphoned off illegally and fraudulently by the directors of the company - assessee submitted that the order has been passed by Ld. CIT(Appeals) without granting adequate opportunity of hearing to the assessee - HELD THAT:- As assessee was never in receipt of the rental income, since neither the assessee company had entered into a lease agreement with the tenants and nor was the rental income ever received by the assessee company, accordingly the said rental income was not offered to tax by the assessee in its return of income. Secondly, inadequate opportunity of hearing was afforded by the Ld. CIT(Appeals) and the case was dismiss....... + More

Unexplained cash deposits - whether impugned cash deposits to the joint bank account of the assessee and her mother belonged to the assessee? - department alleges that the impugned deposits have been made by the assessee, whereas the assessee has successfully demonstrated that these deposits have been made by her mother out of cash withdrawals made by her on 15.01.2009, much earlier than the dates of impugned deposits - HELD THAT:- It is of the opinion that only because the assessee now has been mentioned as joint account holder of the bank account to which the impugned cash deposit has been made, the additions cannot be made and sustained in the hands of the assessee, keeping aside other relevant evidences, which clearly reveal that the mother of the assessee had withdrawn an amount of Rs.50 lakh from her bank account and the impugned th....... + More

Exemption u/s 10(6)(ii) - remuneration received by her from Austrian Trade Commission, Austrian Embassy under full time employment - As per AO assessee is not a staff member or any official, but, was engaged as Consultant on contractual agreement basis, therefore, the exemption u/s 10(6)(ii) of the Act is not available to her - HELD THAT:- In the official endorsement, it has been mentioned that the assessee is responsible as head of Technology at Austrian Trade Commission in New Delhi. The certificate issued by the Austrian Embassy clearly reveals that the assessee was appointed as Consultant in the Austrian Trade Commission in the field of Mechanical Engineering & Terotechnology and Automotive Industry, from the relevant financial period and subsequent certificate dated 17.06.2019 further clarify that the assessee has been under full....... + More

Delayed PF / ESI conntribution - contribution received towards PF/ESIC by the assessee from its employees was not deposited before the due date - HELD THAT:- We are of the view that the AO was not justified in denying the deduction claimed by the assessee on account of late deposit of PF/ESI/EPF, albeit before filing the return of income. Admittedly in the matter, the Revenue had not contended that the assessee has deposited the contribution after the filing of the return of income, we allow the ground raised by the assessee and direct the AO to delete the addition. - Decided in favour of assessee.

Belated payment of Employee’s Provident Fund (EPD) and Employee’s State Insurance Scheme (ESI) - HELD THAT:- We are of the view that the AO was not justified in denying the deduction claimed by the assessee on account of late deposit of PF/ESI/EPF, albeit before filing the return of income. Admittedly in the matter, the Revenue had not contended that the assessee has deposited the contribution after the filing of the return of income. Respectfully following the decision we allow the ground raised by the assessee and direct the AO to delete the addition. See PRO INTERACTIVE SERVICE (INDIA) PVT. LTD. [2018 (9) TMI 2009 - DELHI HIGH COURT] - Decided in favour of assessee.

Revision u/s 263 by CIT - miss match in income / capital of gain on sale of land or building - HELD THAT:- When a query was raised to the AR that whether the AO has raised this point with respect to applicability of provisions of section 43CA of the Act in the course of assessment proceedings, the Ld AR submitted that since the AO has issued notice 142(1) of the Act and the assesseee has complied with the directions with substantial material information and which covers the disputed issue also. AR emphasized on the details submitted by the assesse before the Pr.CIT on 4-12-2019 which includes agreement copies, booking receipts, ready recokner ,and calculation sheet of value as of flat with ready recknor value placed and the bank statements highlighting payments received from flat owners was filed first time before the Honble Tribunal as p....... + More

Income accrued in India - Centralized services fee received by the appellant for rendering various marketing, advertisement & other services to customers in India - whether taxable as “Fees for Technical Services” (FTS) in terms of Section 9 of the Income Tax Act, 1961 as well as Article 12 of the India US Double Taxation Avoidance Agreement (DTAA) - HELD THAT:- As decided in own case [2019 (10) TMI 1447 - ITAT DELHI] main service rendered by the assessee to its clients-hotels was advertisement, publicity and sales promotion keeping in mind their mutual interest and, in that context, the use of trademark, trade name or the stylized 'S' or other enumerated services referred to in the agreement with the assessee were incidental to the said main service, it rightly concluded, in our view, that the payments received we....... + More

Relief u/s 90 - foreign tax credit - disallowance of FTC in case of delay in filing Form No. 67 - whether assessee is entitled to foreign tax credit even when form number 67 required to be filed according to the provisions of rule 128 (9) of the Income Tax Rules on or before the due date of filing of the return of income, not complied by the assessee, but same was filed before the completion of the assessment proceedings? - HELD THAT:- It is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory. Admittedly, Rule 128 does not prescribe denial of credit of FTC. Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of ....... + More

Revision u/s 263 - jurisdiction of the AO over the assessee whether it was with the Mumbai office or Rajkot office - HELD THAT:- There is no dispute to the fact that the intimation for the change of the address was duly communicated by the assessee to the AO of Mumbai and therefore the AO Mumbai made all correspondences including the notice issued u/s 143(2) of the Act at the address of Rajkot. Thus it is transpired that for all practical purposes the address of the assessee was shifted from Mumbai to Rajkot and this fact has also not been controverted by the revenue. No ambiguity to the fact that jurisdiction over the assessee was vested with the income tax office of Rajkot and therefore the AO Mumbai has exceeded his jurisdiction by framing the assessment u/s 144 - At the time of hearing the DR has not brought anything on record contrar....... + More

Constitutional Validity of circular dated 07.12.2017 - violation of fundamental rights of the Petitioner on account of the taxes being shared and borne by the Petitioner post the enactment of the Goods and Services Tax Act, 2017 - infringement of provisions of Goods and Services Tax Act, 2017 or not - restitution of benefits to the Petitioner along with interest and compensation within a stipulating period in terms of the order passed by the Hon’ble High Court - HELD THAT:- The question whether, in fact, any amount is owed to the Petitioner by the Opposite Parties on account of GST deducted from its bills or vice versa, has become a highly disputed question of fact. The claim of the Petitioner ultimately, in simple terms, is one for money which it seeks as reimbursement from the Opposite Parties. It is not possible for this Court in....... + More

Seizure of goods alongwith vehicle - seizure on the ground of vehicle not having an appropriate E-way bill - HELD THAT:- While there appeared to be an apparent mistake in the original E-way bill under Annexure-1, i.e. the name of the seller and the buyer had been erroneously swapped and, therefore, the Revenue was justified in not allowing the vehicle to enter into the State and seized the same, yet we find that once the corrected E-way bill under Annexure-3 was produced before the respondents and the apparent error having been corrected, there is no justification in either initiating the present proceedings against the petitioner or in continuing with the seizure of the vehicle along with goods. In the case at hand, there is no dispute that the parties are genuine, nor is there any dispute that the original E-way bill contained an error........ + More

Issuance of notice under proviso to sub-section (1) of Section 50 of the CGST Act demanding interest on delayed payment of tax - initiation of recovery proceedings under Section 79 of CGST Act even without issuing a notice under Section 73 of the CGST Act - HELD THAT:- Stay is granted to the effect and operation of impugned notice. Accordingly, it is directed that the effect and operation of the impugned notice dated 25.03.2022 (Annexure P/1) shall remain stayed till the next date of hearing.

Rejection of refund of the tax paid for the second time and penalty - address from where the timber was dispatched was inadvertently mentioned in the e-Way Bill - HELD THAT:- Due to an unintentional error at the time of generating the e-Way Bill, the address from where the goods were dispatched was wrongly mentioned and accordingly, the goods were rightly confiscated by the respondent authorities. It was not for the respondents to take a decision as to whether the petitioner was intentionally trying to evade tax or not. As there was discrepancy in the document from where the goods were dispatched, the authorities intercepted and confiscated the same. The petitioner was directed to pay the tax as well as penalty - Thereafter it appears that a fresh e-Way Bill was generated immediately after interception. The description of the goods in the....... + More

Seeking grant of bail - inadvertent mistake - Violation of bail conditions - failure to appear before the Investigation officer - Google pin could not be dropped to the Investigating Officer - HELD THAT:- Taking into consideration the overall facts and circumstances of the case and the fact that the petitioner was granted regular bail vide order dated 17.02.2022 and the impugned order relates to certain non-compliances of the terms and conditions to which the petitioner has given sufficient explanation. In addition, since the petitioner has already undertaken that he would appear before the Investigating Officer as and when he is called for and explain the reason if, at all, any document or information is not available to him, it would be up to the Investigating Officer after perusal or consideration of the explanation by the petitioner t....... + More

Seeking grant of Regular Bail - played role of middle man - offence punishable under Sections 132(1)(b) of the Gujarat Goods and Service Tax Act, 2017 and the Central Goods and Service Tax Act, 2017 read with Section-120(B) of the Indian Penal Code - HELD THAT:- In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. The applicant is ordered to be released on regular bail registered with the Office of the Chief Commissioner of State Tax, Enforcement, Gujarat State, Ahmedabad on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.

Refund claim - time limitation - whether the application made by the petitioner is barred by limitation and whether all the documents as required are filed along with the said refund applications? - Section 54 of CGST Act - HELD THAT:- Section 54 of the CGST Act, 2017 deals with ‘Refund of Tax’. It is also not in dispute that the said application must be made within a period of two years from the relevant date in such form and manner prescribed. But, at the same time, it is to be noted that the Government of India, Ministry of Finance issued a Circular dated 25.09.2021 on this aspect. The subject in the said Circular relates to “Refund of Tax” specified in Section 77(1) of CGST and Section 19(1) of IGST Act. A reading of the Circular No.162/18/2021-GST and Column No.3 of 4.3 relating to refund claim, it is clear th....... + More

Maintainability of appeal - adverse report was not furnished to the appellant - effective opportunity of hearing was not granted to the appellant by the appellate authority - principles of natural justice - HELD THAT:- Admittedly, as against the impugned order as on date there is no other remedy available under the Act since the Tribunal has not been constituted. Therefore, the appellant had to necessarily approach the learned writ court for challenging the said order - when such is the position, the learned writ court would have to examine as to the correctness of the order passed by the appellate authority as the writ petition is the first judicial forum, which will test the correctness of the order passed by the statutory appellate authority. If there is an adverse report drawing certain conclusions against the appellant, then such mat....... + More

Maintainability of petition - availability of alternative remedy - Jurisdiction - whether authority does not have jurisdiction to issue the show cause notice? - HELD THAT:- The issue relating to the jurisdiction of the authority can very well be raised before the appellate authority and it is the mixed question of fact and law, which can be canvassed by the appellants before the appellate authority. Therefore, we are of the view that the learned Single Bench rightly refused to entertain the writ petition on the ground of availability of alternative remedy, which, in our view, is not only efficacious but also effective as well. In the light of the above, while dismissing the appeal and affirming the order passed by the learned Writ Court, the appellants are directed to file the appeal before the concerned appellate authority in physical fo....... + More

Constitutional Validity of Levy of GST on Royalty - GST on the reverse charge basis on the royalty of the mining extraction - HELD THAT:- We are bound by the final orders passed by Co-ordinate Benches of this Court in the cases of Udaipur Chambers of Commerce and Industry & Others Vs. The Union of India & Another [2017 (10) TMI 975 - RAJASTHAN HIGH COURT], M/s Mateshwari Minerals & Another Vs. Union of India & Another [2021 (7) TMI 1379 - RAJASTHAN HIGH COURT], M/s Shivalik Silica Vs. Union of India & Others [2022 (3) TMI 1369 - RAJASTHAN HIGH COURT] and RAJASTHAN SMALL MINES (CHEJAPATTHAR) LEASE HOLDERS ASSOCIATION VERSUS STATE OF RAJASTHAN [2022 (4) TMI 1451 - RAJASTHAN HIGH COURT] where it was held that The royalty being “consideration” certainly places assignment of right to use natural resources deposi....... + More

Pre-deposit before filing of an appeal - Utilisation of credit available only in the Electronic Cash Ledger - Whether, an Appellant, to comply with the requirements of Sub-section 6 of Section 107 of the Maharashtra Goods and Services Tax Act, 2017 (MGST Act) of paying a sum equal to 10% of the amount of Tax in dispute arising out of the impugned order, can pay the amount utilising the credit available in the Electronic Credit Ledger? HELD THAT:- Petitioner having to pay 10% of the Tax in dispute under clause (b) of Sub-section (6) of Section 107, can certainly utilise the amount of ITC available in the Electronic Credit Ledger. Sub-section (4) of Section 49 provides the amount available in the Electronic Credit Ledger may be used for making any payment towards output tax under the MGST Act or IGST Act subject to certain restrictions or c....... + More

Maintainability of petition - appealable order or not - Levy of interest under Section 50 along with penalty under Section 122(2) of the Central Goods and Service Tax Act, 2017 - restriction on ITC - HELD THAT:- A perusal of Section 50 of CGST Act, 2017 shows that there was an amendment to Section 50 of the CGST Act, which came into effect from 01.06.2021. A reading of Section 50 of CGST Act coupled with the amendment would show that every person who is liable to pay tax in accordance with the provisions of this Act or the rules made thereunder, but fails to pay the tax or any part thereof to the Government within the period prescribed, shall for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate, not exceeding eighteen percent, as recommended by the Government. Whether the authorities ....... + More

Maintainability of application - rectification of mistake - error apparent on the face of record or not - Classification of services - manpower supply service - services rendered to government institutions/entities/authorities - Educational Institutions or not - HELD THAT:- The Applicant is engaged in supply of Manpower services to various organisations/institutions like Indian Institute of Astrophysics, Indian Academy of Sciences, National Dairy Research Institute, National Institute of Oceanography, National Institute of Technology Goa, Raman Research Institute, SJB College of nursing, Central University of Karnataka, National Assessment and Accreditation Council, National Institute of Fashion Technology and BGS Global Institute of Medical Science. The manpower supplied by the applicant is in the nature of security guards, housekeeping ....... + More

Renting of residential accommodation - Constitutional Validity of Clause (A)(b) of the Notification No.04/2022-Central Tax (Rate) dated 13th July, 2022 - exemption available to tenants who are registered under GST or not - HELD THAT:- The clarification that renting of a residential dwelling by a proprietor of a registered proprietorship firm, who rents it in his/her own personal capacity for use as his/her own residence as well as not for use in the course or furtherance of business of his/her proprietorship firm and such renting is on his/her own account and not that of proprietorship firm shall be exempt from GST, is accepted by this Court and all the respondents are held bound by the same. Petition disposed off.

Rejection of refund claim - zero rated supply - whether the petitioner has supplied Electrical Energy across the border? - entitlement for refund of Input Tax Credit - whether amended Rule 89(2) of CGST Rules, 2022 is clarificatory or declaratory? - HELD THAT:- Circular No.175/07/2022-GST dated 06.07.2022 issued by Ministry of Finance, Government of India clearly establishes that amendment to Rule 89 of CGST (Amendment) Rules, 2022 was carried out to cure the defect in Rule 89 of CGST Rules, 2017, because of the problem faced by power generating units in filing refund claims of unutilised Input Tax Credit on export of electricity. Further, a perusal of the amendment to Rule 89(2) of CGST Rules, would inter-alia show that the said Rule came to be amended only to clarify the anomaly that was existing with regard to production of material ev....... + More

Reopening of portal for filing of form TRAN-1 - carry forward of CENVAT Credit - Section 140(3) of the CGST Act, 2017 - violation of principles of natural justice - HELD THAT:- It is very clear that the assesses are given two months’ time for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 i.e, w.e.f. 01.09.2022 to 31.10.2022. Further, the authorities were also directed to see that there would be no technical glitches during the said period. A reading of the said order does not anywhere indicate that the same pertains to a particular assessment year. It appears that any assessee, who intends to file concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 and was denied earlier because of some technical problem, is always at liberty to make use of the said order and upload the relevant forms during the relevant period. Petition allowed.

Refund of IGST and duty drawback - petitioner was categorised as a risky exporter - CBEC Circular No.131/1/2020-GST - HELD THAT:- The petitioner says, that the petitioner would be satisfied, if the respondents are directed to treat the writ petition as a representation, and determine afresh, as to whether the petitioner falls in the category of “risky exporter. The respondent no.3/Commissioner will treat the writ petition as a representation. The said respondent will also examine the stand taken by the petitioner, in its rejoinder - For this purpose, respondent no.3/Commissioner will afford an opportunity of personal hearing to the authorized representative (AR) of the petitioner. Petition disposed off.

Maintainability of appeal - requirement of mandatory pre-deposit - appeal rejected on the ground that the mandatory deposit should have been made from the cash ledger - HELD THAT:- After hearing the counsel for the petitioner as well as learned Standing Counsel, this Court finds that pre-deposit has been made by the Firm before the Appellate Authority, and the Appellate Authority shall not insist the Firm to make deposit through electronic cash ledger and shall proceed to decide the appeal on merits strictly in accordance with law. The writ petition stands partly allowed.

Seeking grant of Regular Bail - availment of irregular input tax credit - HELD THAT:- On perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. In the facts and circumstances of the present case and considering the role attributed to the applicant and the allegations levelled against him, the case of the applicant deserves consideration and, therefore, the case of the applicant needs to be considered. The applicant is ordered to be released on regular bail registered with Shahpur Police Station, Ahmedabad on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - bail application allowed.

Maintainability of appeal - time limitation - petitioner’s appeal came to be dismissed on the ground that appeal was not filed within a period of three months provided under Section 107(1) of The Central Goods and Services Tax Act, 2017 - the appeal was delayed more than one month provided under Sub Section 4 of Section 107 of the CGST Act - HELD THAT:- In the affidavit in reply it is not denied that the order in original dated 14th November 2019 was not digitally signed. In the affidavit in reply it is specifically stated that the show cause notice was digitally signed by the issuing authority but when it refers to the order in original dated 14th November 2019 there is total silence about any digital signature being put by the issuing authority. Conveniently, respondent stated that petitioner cannot take stand of not receiving the....... + More

Territorial Jurisdiction - power of Tribunal to decide any appeal in respect of any goods imported or exported as Baggage - absolute Confiscation - direction for re-export of goods - Section 129A (1) of the Customs Act, 1962 - HELD THAT:- Having found that the Baggage Rules would cover the respondents in terms of the categories of passengers, question may still arise as to whether jewellery worn on the person of a passenger would constitute Baggage. It may be necessary for the appellant to show that not only the appellants are governed by the Baggage rules but the jewellery worn on the person would constitute “Baggage” to sustain its argument of lack of jurisdiction of the Tribunal to deal with the present issue. It seems that the appellants may be right in its submission that the issue relates to Baggage falls within the excl....... + More

Provisional release of the impugned goods - import of used Digital Multifunctional Printers / Devices (MFDs) (second hand goods) - non-compliance with the provisions of Domestic laws under the Bureau of Indian Standards (BIS) Act, 2016 read with the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order (CRO), 2012 - failure to obtain DGFT authorization as required for the import of second hand goods, as required under paragraph 2.31 of the FTP, 2015-20 - failure to produce Chartered Engineer Certificate in complete. HELD THAT:- Reliance placed in the case of THE COMMISSIONER OF CUSTOMS, CHENNAI VERSUS M/S. KUTTY IMPEX [2022 (9) TMI 1049 - CESTAT CHENNAI], wherein it was held that the First Appellate Authority was correct in allowing the appeal thereby ordering provisional release of the goods in que....... + More

Benefit of Notification No. 99/2011-Cus denied - import of Colchicum (Saanjan) Grade 3 - imported goods of Afghanistan origin imported from Afghanistan to India transiting through Pakistan - chargeable to NIL rate of duty OR chargeable to 200% duty? - HELD THAT:- The Bill of Lading is the document of title. It is issued by the Master of the Vessel or his agent, say, the Shipping Agent, acknowledging receipt of the goods. It indicates what has been received (say, container number so and so) and what it is said to contain, how it is sealed (seal number, etc.). If there are any remarks about the condition of the goods (say, leaking or damaged), it is called a “dirty bill of lading‟ and otherwise, called a “clean bill of lading‟. The responsibility of the shipping line is to deliver to the consignee the container (or o....... + More

Import of twine engine light weight Aircraft (Aircraft BRT) - Benefit of the exemption - nil rate of duty on import of aircraft for non-scheduled (passenger) services as well as non-scheduled (charter) services - whether there has been any violation of Condition No. 104 of the exemption notification? - HELD THAT:- It is clear that the Aircraft BRT has been strictly used in terms of the permit granted by the DGCA and the said Aircraft was used for remuneration purposes only. The confirmation of demand by the Commissioner against the appellant for confiscation of the Aircraft BRT with an option to redeem the same on payment of Rs. 6.5 crores under section 125 of the Customs Act cannot be sustained and is set aside - Appeal allowed.

Re-import of jewellery exported for exhibition - Benefit of exemption - sale or transfer of property was involved in the goods or not - jewellery - exemption under Sl.No.5 of the Table in Notification No.45/2017-Cus - demand alongwith interest and penalty - HELD THAT:- It is admitted fact that there was error in mentioning in the shipping bill at the time of export, that the same is filed under claim of refund of IGST. The admitted fact is that there being no sale in the transaction, neither the IGST is paid by the appellant nor they had claimed refund for it. These facts are not in dispute. Thus, the appellant has rightly filed the bill of entry claiming the exemption under Sl.No.5 of the Table to the said notification. Further it is found that the whole exercise is academic as no Revenue loss has occurred. In this view of the matter, the appeal is allowed.

Levy of penalty under Section 114 of the Customs Act - smuggling - mobile phone (Samsung A3) - Foreign and Indian currency - used clothes - rusk (toast) - wafer (papad) packets - baggage rules - reliance based on statement of Shri Anil Jain - third party evidences - corroborative evidences or not - HELD THAT:- The whole case of Revenue is based on the statement of Shri Anil Jain. It is further found that the statement of Shri Anil Jain is third party evidence, which is unsubstantiated. Further, Shri Anil Jain has not been examined in the adjudication proceedings, as required under Section 138 B of the Act and hence, the same is not reliable. There is absence of any other evidences to corroborate the statement of Anil Jain against this appellant. Appeal allowed - decided in favor of appellant.

Onus and power of custodian - validity of auction of goods - seized goods - LED bulbs - cosmetic items - failure to provide the BIS certificate - goods not fit for Human consumption - HELD THAT:- The Principal Commissioner/Commissioner may withdraw any lot from auction or tender at any time or cancel the same at any stage, prior to the delivery of the goods. Furthermore, Permission/NOC is required to be taken by the buyer from the concerned authorities, as specific for respective items. The respondent No.1 or the custodian in the present case were unable to furnish the required documents for the delivery of the disputed items. Though the custodian can discharge/clear the uncleared items, it shall be permitted only by acquiring the permission of a proper authority - In the present case, despite not obtaining the BIS certificate and NOC fro....... + More

Condonation of delay of 351 days in filing the instant appeal - HELD THAT:- The reasons assigned in the affidavit filed in support of the application are satisfying - the delay in filing the instant appeal is condoned - application allowed.

Misdeclaration of export goods or not - 141.74 Carat of cut and polished diamonds - whether declarations made in the Shipping Bill were truthful or not - contravention of provisions of Section 50(3) of the Customs Act, 1962 or not - HELD THAT:- There is absolutely no explanation as to why Respondent No.2 did not even consider it necessary to reply to Petitioner’s request to return the diamonds, though Respondents seem to have no problem with those diamonds. In Paragraph 33 of the Reply, it is stated that Section 118(b) of the Customs Act, 1962 permits them to confiscate the balance 110.55 Carat also because they were all in the same package. If that was the position, then there is no reason why those diamonds were not included in the show-cause notice as proposed to be confiscated. Therefore, it is nothing but an afterthought to get....... + More

Reduction in the quantum of redemption fine and penalty - mis-declaration of description of imported goods - rejection of declared value - redetermination of value - confiscation of imported goods - HELD THAT:- In this case, the invoice value was correctly rejected by the Adjudicating Authority for the reason the goods which were imported were completely different from those which were declared. The price declared in the invoice was for LED TVs whereas what were imported were smart LED TVs. Further, what was declared was 740 pieces and what was actually imported was 742 pieces. During investigation, the appellant has submitted five letters to the Department accepting the re-determination of the duty and agreeing to pay the differential duty along with applicable fine and penalty on the re-determined value. It further waived the issuance o....... + More

Classification of goods - determination of the appropriate rate of duty - used mild steel (MS) plates imported upon procurement of these after demolition of six ‘petrochemical tanks’ in the United Kingdom by M/s GK Middle East FZC, Ajman - Valuation of Customs Duty - HELD THAT:- On scrutinising heading 7208 of First Schedule to Customs Tariff Act, 1975, within which the impugned order has placed the goods imported by the appellant, it is seen that the description, ‘Flat-rolled products of iron or non-alloy steel, of a width of 600 mm or more, hot-rolled, not clad, plated or coated’, has been sub-classified at the eight digit level for one item and, for all other items, as seven enumerations ‘in coils’ and four enumerations for those ‘not in coils’, at six digit level and the adopted item lie....... + More

Refund of SAD - denial of refund of SAD in respect of sizes of aluminum foil which were not appearing in the import bills of entry on which SAD was paid - HELD THAT:- The appellant has not been able to satisfy why the size of aluminum foil mentioned in domestic sale in respect of which refund of SAD has been claimed did not figure in their import details. In absence of any evidence to that effect, the appellant has failed to establish that goods on which SAD refund has been claimed are the same goods on which SAD was paid. There is no merit in the appeal. The same is dismissed.

Suit for value of goods - wrongful delivery of goods by another agent of the disclosed principal - vicarious liability - breach of express term of contract of carriage by wrongfully and illegally delivering the consignments sans presentation of original Bills of Lading - failure to mitigate the loss - duty drawback claim. Whether the value of the goods consigned by the plaintiff is proved? - HELD THAT:- The fact that immediately after the claim was lodged by the plaintiff defendant nos.3 and 4, went on to claim the amount from the person, whom they held liable, detracts materially from the defence now sought to be raised. Undoubtedly, the Bills of Lading contain a disclaimer as regards the quantity, contents and value of the goods consigned. However, the plaintiff’s claim is not rested on the value of goods mentioned on the Bills of....... + More

Import of good subject to FSSAI regulations - time frame for inspection of goods - praying for levy of demurrage charges being imposed on an importer only after the grant of an NOC from FSSAI and in essence a waiver from that levy till such time as clearance is granted - the reliefs as claimed stand restricted to appropriate directions being framed for FSSAI expediting the process of inspection of imported articles and for permission being accorded to enable an importer to move the goods from a custodian warehouse to a public warehouse. HELD THAT:- From the recordal of submissions of parties it is manifest that none of them question the permissibility of the movement of imported articles from a custodian warehouse to a public warehouse. It was also conceded before the Court that no provision, statutory or otherwise, prohibits such a choic....... + More

Seeking refund of terminal excise duty (TED) - duty paid on supply of laptops to licence holders of Export Promotion Capital Goods (EPCG) Scheme - benefits for deemed exports - HELD THAT:- There are no doubt in mind and Mr.Chandrasekaran, learned Senior Panel for R1 to R5 would fairly accede to the position, that a supplier to a EOU/licence holder under the EPCG scheme, is entitled to refund of terminal excise duty. In the present case, there is no dispute on the position that the petitioner has, in fact, paid the refund at the first instance - the factum of payment of duty by the petitioner stands established. In the case of Sandoz Private Limited [2022 (1) TMI 225 - SUPREME COURT], the Hon'ble Supreme Court has directed credit of the duty paid to the CENVAT Register of that assessee for the reason that, pending litigation, the era o....... + More

Levy of penalty on Customs Broker and Managing Director u/s 112 (a) - Deemed conclusion of proceedings on payment of duty with interest - benefits of sub-Section 6(i) of Section 28 of the Customs Act -proceedings against the Appellant-Customs Broker - conclusion of proceeding against goods which were seized under Section 110 of the Customs Act or liable for confiscation on the other Sections of Customs Act - HELD THAT:- While applying this provision against the Appellant, the Commissioner had observed that the goods were seized under Section 110 and liable for confiscation under Section 111(m) of the Customs Act, 1962 and hence the co-noticee M/s. Damani Shipping Pvt. Ltd. (present Appellant) is out of the purview of the clarification of the Board Circular No. 11/2016-Cus. dated 15.03.2016. Further, Section 28(6)(i) of the Customs Act, 19....... + More

Maintainability of suit for permanent injunction - restraining infringement of trademark, copyright, trade dress etc. against unknown Defendants - HELD THAT:- The import of goods which violate Intellectual Property Rights is governed by the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (IPR Rules). As per the said rules, import of any counterfeit products or products which violate IP rights of trademark owners, copyright owners, etc., is not permissible. The customs authorities have to, upon complaint received from any IP owner, or on its own accord, form an opinion qua the infringement of the IP rights. Upon forming an opinion, the import or sale of products which violate rights of IP owners including trademark, copyright, etc., would have to be stopped by the customs authorities. The import having been stopped by....... + More

Determination of method by which the iron (Fe) content in the iron ore is required to be determined for the purposes of levy of duty on the petitioners' export under the bills - Legality of the General Alert Circular no. 02/2019 dated 12/15th April 2019 (GA Circular), issued by the Directorate of Revenue Intelligence (DRI) - finalization of assessments of the five Shipping Bills under consideration filed by the Petitioner No. 1 - Seeking declaration that no liability of export duty can be imposed upon the exports of Petitioner No. 1 - enforceability of Provisional Duty Bonds and Bank Guarantees furnished by the Petitioner No.1. HELD THAT:- The petitioners in the present context are correct in contending that in the process of determination of the appropriate rate of export duty on iron ore, it entails a determination of three issues, ....... + More

Seeking provisional release and re-export of seized goods - goods seized on the ground of non-observance of conditions of Food Safety and Standards Act, 2006 read with Food Safety Standard Rules, 2011 as well as the Food Safety and Standard (Import) Regulation, 2017 and other applicable FSSAI norms and other safeguarding conditions - HELD THAT:- The provisional release is granted in terms of section 110A of the Customs Act. In this regard, it is to be noticed from the contents of the affidavit-in-reply filed by respondent No.3 Customs that the petitioner has already made applications in form of letters dated 4.6.2022 and 1.7.22 seeking provisional release of the goods. The affidavit-in-reply in para 8.9 inter alia mentions that while seeking provisional release, the petitioner has expressed its inability to give bank guarantee as required....... + More

Refund alongwith interest claim - classification of coils and spares and accessories - to be classified under Entry 8544.11 or under Entry 6815.99 under the Schedule to the Customs Tariff Act, 1975 - HELD THAT:- The computation of duty also indicates the duty paid in respect of 4 Bills of Entries, 2 for coils and 2 for accessories. Thus, there is no doubt that claim for refund was made in respect of duty paid for both coils and accessories. It thus follows that the orders-in-original and first appeal, and the order of the CESTAT relate to the refund application as a whole and in respect of all 4 bills of entries. Even on a practical and pragmatic appreciation of the matter, it does not stand to reason that the coils would be classifiable under Entry 8503 and accessories for the coils be classified under a different heading altogether. Cle....... + More

Seeking restoration of name of the company in the Register of Companies being maintained by the Registrar of Companies, NER, Guwahati, Assam (ROC) - Section 252 of Companies Act - HELD THAT:- The petitioner has contended in the present petition that the company has been active since its incorporation. The failure on the part of the company to file the financial statements was unintentional and not deliberate. However due to such reason the ROC, Guwahati Struck off the name of the Company. It would be just and equitable to revive the name of the company, KONGBAM CONSTRUCTION PRIVATE LIMITED in the statutory register as being maintained by the Registrar of Companies, Guwahati. Application allowed.

Struck off name of the Company - defunct company. - HC upheld the order of RoC - Locus of the appellant seeking restoration of struck off name of the Company from the register of RoC - RoC asserted that the company was not functioning and not carrying out any business and the last annual return was filed of the year 2002-03 - Section 560(5) of the Companies Act, 1956 - HELD THAT:- the document produced by the appellant including the DIN forms obtained in September/October 2008, much after name of the Company was struck off in the year 2006 and even Form 32 which has now been placed on record by the appellant has been seriously disputed by the respondents. The Division Bench of the High Court under the impugned judgment has proceeded on the basis of the facts referred to in the affidavit in opposition filed by the RoC while recording a fin....... + More

Suit for recovery alongwith interest - Order XXXVII of Code of Civil Procedure, 1908 - whether the averments in the pleadings constitute an acknowledgment of debt to the extent of the amount, the defendant agreed to refund? - HELD THAT:- In the light of the exposition of the legal connotation of the terms “debt” and “acknowledgment” the pleadings extracted it satisfies the requirement of both “debt” and “acknowledgment” to the extent of the amount, which the defendant agreed to refund. The submission on behalf of the defendant that, in the absence of a written contract to refund the amount, the tenability of the suit itself is suspect, does not merit acceptance unreservedly, if the afore-extracted pleadings are construed in the light of the aforesaid enunciation of law. In my view, the ackno....... + More

Seeking to transfer of the Company Petition to the National Company Law Tribunal (NCLT) for being heard and decided in accordance with the provisions contained in Insolvency and Bankruptcy Code, 2016 (IBC) - alleged malafide conduct of the ex-directors of Futura - Section 434 of the Companies Act, 2013 - HELD THAT:- Commitments and undertakings were made on umpteen occasions to be observed in breach. Simply, it cannot be urged that Futura and its ex-directors had no adequate opportunity to make amends. Thus, the touchstone, on which irreversibility is to be judged, is also indicated by observing that so long as no actual sale of the immovable or movable assets of the company in liquidation takes place, nothing irretrievable can be said to have been done which would preclude the Company Court from exercising discretion to transfer the proc....... + More

Validity of Arbitral Award - seeking winding up of company (Devas) - it was alleged that Devas was formed for a fraudulent and unlawful purpose and its affairs had been conducted in a fraudulent manner - Section 271(c) read with Section 272(1)(e) of the Companies Act, 2013 - HELD THAT:- An independent but concurrent opinion was authored by the other member of the NCLAT, Mr. V.P. Singh, Member (T). Mr. V.P. Singh in his judgment inter alia held Devas could not have delivered Devas Services in India due to the lack of policy framework and licensing regime for a new service like Devas Services - Devas conceded before the NCLAT that the design of DMR and CID was at a conceptual level and were to be developed at a future date. It was also not disputed that DMR and CID were portions of the Devas’ Device and not the Devas’ Device its....... + More

Oppression and Mismanagement - requisite shareholding to maintain the Petition, present or not - waiver of the shareholding requirements mentioned in Section 244 (1) (a) of the Companies Act, 2013 - Section 241 and 242 of the Companies Act, 2013 - seeking withdrawal of second waiver application - HELD THAT:- Admittedly, before passing of the impugned order, an opportunity of Hearing was given to the Appellants. In this connection, a cursory perusal of the ingredients of Rule 111 (1) of the NCLT Rules, 2016, Filing of objections by Respondent, Form and Consequences, unerringly points out that the Respondent, if so directed, shall file Objections or Counter within the time allowed by the Tribunal. In effect, the Tribunal has an inherent power while exercising its discretion not to direct the Respondent to file a Counter / Reply / Response i....... + More

Seeking restoration of the name of the company, which was struck off by the Registrar of Companies, NCT of Delhi - section 252 of the Companies Act 2013 - HELD THAT:- It is seen from the documents available on record that the company possesses lands registered in its name. Besides it is seen that the appeal has been filed within the stipulated period prescribed under Section 252 of the Act. Needless to say, that Income Tax Department and ROC have raised no specific objection against the restoration of the Company subject to filing of statutory returns on payment of fees as prescribed. Moreover, nobody would be prejudiced by the restoration of the name of the Company. On the contrary, the restoration is clearly in the interest of the Company. Even, if the management of the Company entrusted with the responsibility of filing of statutory re....... + More

Legislative power of state government - Matter covered within the scope of Companies Act - Beneficial provisions of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act 1999 (MPID Act) - whether the provisions are entirely denuded and reduced to meaninglessness when the financial establishment in question is a corporate entity in liquidation? - HELD THAT:- MPID Act does not contemplate a situation of a company in liquidation at all. There are two reasons for this. The first is that the MPID Act deals with a financial establishment as defined. It is not limited to a company. In that scenario, i.e. where the financial establishment is not a company, no question of winding up arise. Second, it appears from a careful reading Section 4 that the MPID Act is in fact predicated on the financial establishment (whe....... + More

Sanction of Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamation) Rule, 2016 - HELD THAT:- In view of Section 230(9) of the Companies Act, 2013, the Tribunal is empowered to dispense with calling of a meeting of creditors or class of creditors where such creditors or class of creditors, having at least ninety percent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. Application allowed.

Oppression and mismanagement - Seeking appointment of Presidential Nominee of Petitioner No. I to act as the President of FHRAI with the stipulated Term of 1 year from the date such Presidential Nominee assumes charge as President of Respondent No. 1 - seeking restraint on Respondent Nos. 2 to 15 from making any changes to the Articles of Association of Respondent No. 1 unless such changes have been made with the leave of this Hon'ble Tribunal - interpretation of Article 52 of the Constitutional document of Respondent No. 1 - HELD THAT:- It is seen from the facts submitted by the Petitioners and not denied by the Respondents that many other names of candidates of HRAEI were proposed/nominated to be elected act as President, but they declined to accept the position saying that it is the Petitioner No. 11 who was nominated by the member....... + More

Seeking grant of Anticipatory Bail - signature of some of the shareholders is forged is incorrect - forged and fabricated Power of Attorney - offences punishable under Section 120-B read with Section 420 of IPC with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act - HELD THAT:- This court is of the opinion that non-availability of Original Power of Attorney alone would not call for any custodial interrogation. It can be seen that applicant Mukesh Bhanwarlal Bhandari, who is a senior citizen has appeared before the Investigating Officer on 09.06.2022, 26.06.2022, 16.08.2022, 23.08.2022. The applicant Siddharth Mukesh Bhandari also appeared on 09.06.2022, 22.06.2022, 14.08.2022, 16.08.2022 and 23.08.2022 before the Investigating Officer. The offences alleged against the applicants are under Sections 420/468/471/1....... + More

Appointment of Chief Financial Officer - Whether Article 140 of AoA is the only provision which is applicable with regard to appointment of CFO in R-2 Company and no reference to and compliance of any provision of the Companies Act, 2013, particularly sections 203, 184 and 189 therein is necessary? - If reference to section 203 is found to be necessary for looking at eligibility of a suggested nomination, whether R-1’s suggestions of the names of Mr. Devendra Mehta and Mr. Venkataraman Subramanian as first and second nominations complies with the requirement of article 140 of the AoA for appointment of CFO? HELD THAT:- A reading of the section on KMP in the AoA, under which Article 140 is included, indicates that the CFO is considered a KMP, and Rose Investments (R-1) has the right to nominate a person for the position of CFO, and i....... + More

Seeking directions to immediately release the pending payments - seeking directions to release payments against all future invoices which are raised in accordance with the provisions of the PPA without delay and in a timely manner - principles of natural justice - HELD THAT:- There is no dispute to the proposition that having regard to the jurisdiction exercised by the High Court under Article 226 of the Constitution of India, availability of alternative remedy is not really a bar to exercise such jurisdiction. Nonetheless as the jurisprudence has evolved over the years, Constitutional Courts have imposed upon themselves self-restraint in not exercising such jurisdiction barring in certain exceptional circumstances, such as, violation of principles of natural justice, when the vires of a Statute is challenged, etc. However, the same is no....... + More

Seeking repayment of loan - deposit by means of Clause 9 (iii) of the Private Trust Deed - conveyance subject to stamp duty or not - principles of natural justice - HELD THAT:- This Tribunal comes to a consequent conclusion that the impugned order dated 26.05.2022 bristles with legal infirmities, because of the fact that it had not taken into account of the contents of notes of the submissions furnished by the Appellants and the 1st Respondent/Trust in Comp. App (AT) (CH) Nos. 43 and 45 of 2022 in a Qualitative, Quantitative and Threadbare fashion, not discussed about the pros and cons of the submissions made in a detailed manner, in the absence of Adjudication / Determination of Controversies relating to the Movables owned by the Applicant (Deceased), in an appropriate proceedings by the Competent Forum, including the aspect of the plea ....... + More

Correction of error in furnishing PAN - list of shareholders - Seeking directions to ROC to strike out the PAN details of the Applicant mentioned against one H.L. Vaishnav from the list of subscribers - HELD THAT:- On perusal of the documents on record, it is seen that the same PAN of the Applicant is used in Form-I of the Respondent Company, but the entry against the "Name", "Father's Name" and "DOB" is different from that Applicant PAN Card submitted by the Applicant at Annexure P-2. On Comparing these documents, a doubt is raised as to the veracity of the documents/details that are entered in the Company's Form-I (i.e. Application and Declaration of incorporation of the Company). Also, Form-I is not submitted by any practising Professional rather by one member of the Company namely Anil Kumar Sharma has submitted it. List the matter on 08.09.2022 before the Regular Bench.

Criminal contempt for lowering the authority of this Appellate Tribunal, interfering with the course of proceedings before this Tribunal and for obstructing administration of justice, finding them guilty for Contempt of Court - limitation for action of contempt - Section 20 of the Contempt of Courts Act - HELD THAT:- Admittedly, the Contempt case is filed on 14th September, 2021, the alleged acts of Contemnors constituting criminal contempt must be within a year proceeding to the date of filing i.e., 14th September, 2021. For the contemptuous acts of Contemnors beyond one year preceding to date of filing, the Tribunal is not competent to issue notice for criminal contempt. The alleged acts of contemnors prior to 14th September, 2020 are not cognizable. The Contemnors nos. 1 & 4 being erstwhile Resolution Professionals and Members of S....... + More

Revival of company under liquidation - Section 454 of the Companies Act, 1956 - HELD THAT:- There could not have been much variation in the position of the assets, since the winding up petition was filed in and about August 2016 under Section 433 of the Act and accordingly, the petition was admitted on 31.08.2016 - the Company Court appointed the OL as the provisional liquidator, and directed the directors of the company-in-liquidation to file the statement of affairs, within twenty-one days from the said date. The onus, as regards the affairs of the company-in-liquidation, at that point in time, was put on the appellant. The appellant, clearly, tarried and did not show enough alacrity to file a revival scheme - this state of affairs continued to operate, even after the appellant had obtained an order dated 31.01.2018, whereby the OL was ....... + More

Sanction of scheme of arrangement - Section 230 of the Companies Act, 2013 - HELD THAT:- From perusal of the Section 230(3) of Companies Act 2013, it is observed that the notice is required to be sent only if the meeting is directed to be convened under Section 230(1) of Companies Act 2013 - Since, in the instant case the meetings are dispensed with and no meetings are being convened under the provisions of Section 230(1) of Companies Act 2013, therefore the question of serving notices in terms of Section 230(3) and 230(5) do not arise. Notices are required to be sent to the Sector Regulators and objectors in terms of Rule 16(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 at the time of filing Second Motion application, while intimating the Noticees about the next date of hearing of the Application. In view ....... + More

Seeking restoration of the name of the respondent Company, i.e., M/s. Ghantakaran Mahavir Developers Pvt. Ltd. in the register maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- To render assessment order valid in the eyes of Law and to enable the Appellant to take steps for recovery of taxes and for any further consequential proceedings, the respondent company's name needs to be restored to the Register of Registrar of Companies as if the name of the company was never struck off. Denial to restore the name of the respondent company in the Register of the RoC will not only condone the wrong doing of the respondent company but it will also encourage escapement of tax liabilities by such subterfuge, which will be prejudicial to the interest of the revenue in the long run. With respect to t....... + More

Seeking restoration of name of the Company namely, M/s. ES Recycle Private Limited on the Register maintained by the Respondent - Section 252 of the Companies Act 2013 - HELD THAT:- On perusal of the Income Tax returns for a period of two (2) years preceding's the date of struck off, shows the Company has been active and carrying on its business activities and also paid a tax to the tune of Rs. 2,97,275/- for the Assessment year 2017-18. Further, the Applicant Company has also filed the GST returns for the Financial year 2017-18 and also the Central Sales Tax filed by the Company for the year 2012 to 2017. A perusal of the above documents show that the Company has been active and carrying on its business activities two (2) years preceding from the date of strike off. Taking into consideration the provisions of Section 252 of the Compa....... + More

Suspension of registration of the Petitioner - territorial jurisdiction to entertain the Writ Petition of this court - doctrine of forum conveniens - HELD THAT:- It does not appear to be a matter of debate that show cause notice was issued to the Petitioner by the Respondent and subsequent thereto the order of suspension in respect of acts of omission and commission in respect of the proceedings against the Innovari Technologies Pvt. Ltd. at Delhi is issued. The Respondents have also not disputed that the Petitioner acts as a Resolution Professional and has work on hand at Mumbai - The power conferred upon the High Court to issue directions, orders or writs can be exercised by the High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. Th....... + More

Sale of the Corporate Debtor as a Going Concern - Correctness of e- Auction Process conducted by the Liquidator - direction for initiation of fresh bidding process for sale of the Assets of Corporate Debtor - direction to complete the entire process within specified time from the date of Order, inviting fresh bids and according an opportunity to the interested bidders - whether the Appellant-Liquidator committed any material irregularity in conducting e-Auction of Corporate Debtor as a going Concern, if so the irregularity is material which vitiates the entire Auction process and whether the Auction is liable to be set aside? HELD THAT:- In the present facts of the case, the Liquidator/Appellant issued corrigendum extending time not an addenda. Irrespective of nomenclature of the Notification, the purport of the Notification if taken as i....... + More

Approval of Resolution Plan - it is alleged that the Resolution Plan dated 26.06.2020 submitted by 4th Respondent has been approved without application of mind and without scrutinizing the Resolution Plan - it is alleged that the financial proposal against the total dues of Operational Creditors were made without actual assessment of Liquidation Value of Corporate Debtor which dehors the provisions of Section 30(2)(b) read with Section 53 of the Insolvency and Bankruptcy Code, 2016. Whether the CoC and Adjudicating Authority discriminated the Operational Creditors from Financial Creditor while approving the Resolution plan making the Appellant to loss 100% of its claim, if so, the order is liable to be set aside? - HELD THAT:- The Resolution Professional distributed the proportionate amount to the Operational Creditors strictly adhering t....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- When interim orders were passed in this Appeal being orders dated 04.04.2019, 05.04.2019 and 15.04.2019, the Respondent No. 2 in the present Appeal (Company) EMAAR MGF LAND LIMITED VERSUS HADI MOHD TAHER BADRI & ORS. [2022 (10) TMI 48 - SUPREME COURT] which has been disposed of by the Hon’ble Supreme Court on 15.09.2022. The Hon’ble Supreme Court in the aforesaid Civil Appeal No. 4433-4435/2019 noticed the submission of the Appellant that in view of the order passed by Hon’ble Supreme Court in DR. VIRENDRA SWARUP INSTITUTE OF COMPUTER STUDIES VERSUS HADI MOHD TAHER BADRI & ORS. [2019 (3) TMI 1994 - SUPREME COURT], the Company Appeal ....... + More

Seeking direction to respondent No.1 to abstain from proceeding with the public auction of properties belonging to the appellant on 11.11.2021 under Section 60 (5) of IBC read with Rule 11 of the NCLT Rules, 2016 in view of the liquidation order - forum shopping - Whether Section 60 (5) of IBC permits 3rd party to file an application and redress the grievance in the present appeal? - HELD THAT:- Section 60(5)(c) of I.B.C permits all the Tribunals to decide any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person. The language employed in Clause (c) of Section 60(5) made it abundantly clear that the jurisdiction is conferred on the Tribunals or adjudicating authority only to decide the question of fact or law....... + More

Rejection of claims of appellant - enough documents to establish the claim, is present or not - Verification and settlement of unresolved claim under the caption under verification - seeking direction to Respondent No. 2 to consequently pass appropriate direction on the claim of the Appellant - payment towards claim from the contingency fund admissible. HELD THAT:- In the instant Appeal, before this Tribunal, the Adjudicating Authority approved the Resolution Plan on 20.01.2020, and has taken umbrage of the ratio laid down by the Hon’ble Supreme Court of India in GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS. [2021 (4) TMI 613 - SUPREME COURT]. The Hon’ble Supreme Court of India had made the observations on the &l....... + More

Direction to present Appellant to take part in the Corporate Insolvency Resolution Process (CIRP) and pay CIRP costs as per voting share - Applicability of CBIC Master Circular No. 1081/02/2022-CX dated 19.01.2022 on Recovery and Write-off of Arrears of Revenue in IBC matters - Section 60(5) read with Section 19 of the Insolvency and Bankruptcy Code - HELD THAT:- The definitions clause of NCLT Rules, 2016 at Rule 2 (12), states that unless the context otherwise requires, “fee” is the amount payable in pursuance of the provisions of the Act and these rules for any petition or application or interlocutory application or a document or for certified copy of document or order of the Tribunal or such other paper as may be specified in Schedule of Fees to these rules and includes any modifications as may be made thereto or any fee as....... + More

Seeking issuance of direction to the Respondents, to make payment towards the Applicant’s Claim from the Contingency Fund - documents enough to establish their claim or not - Section 60(5) of the I & B Code, 2016 read with Rule 11 of the NCLT Rules, 2016. Whether the Resolution Professional was right in rejecting claims of Appellants with reasoning that the documents were not enough to establish their claim? - HELD THAT:- This Tribunal has noted that during the pleadings and averments made by the ₹ 2nd Respondent that he had no access to the Corporate Debtor’s books of accounts and records, and he had no access to the SAP portal to verify the Appellant’s claim. This proved to be a handicap for the Resolution Professional for verifying the Claims, especially, when the Appellant had failed to furnish / supply the....... + More

Rejection of Resolution Plan - dues of the respondent in books of account of the corporate debtor or not - Section 30(6) of I&B Code - HELD THAT:- There is direct violation of Section 14(1)(b) which creates a bar prohibiting encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. Besides, there is violation of the order of moratorium passed by this Adjudicating Authority on 07.02.2022. Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debta nd dispute or not - time limitation - service of demand notice - whether the demand notice dated 24.04.2019 was properly served? - HELD THAT:- The demand notice sent at registered address of the respondent/corporate debtor as available on the master data of the corporate debtor was not served and was returned with the remarks ‘insufficient address’. Thus, vide order dated 04.10.2019 passed by this Bench, it was observed that since the petitioner sent the demand notice to the address of the corporate debtor as available in the master data, the same is treated as a proper service on the respondent-corporate debtor. Whether the operational debt was disputed by the corporate debto....... + More

Seeking leave to withdraw the appeal - appellant contends that the NCLAT does not have jurisdiction to keep the appeal pending at this stage when the main proceedings before the NCLT from which appeal arose before NCLAT has been set aside by this Court - HELD THAT:- There are no reason to entertain the applications filed by the intervenors before this Court since in any event they have filed applications before the NCLAT and if the prayer of the appellant to withdraw his appeal is allowed, the said intervenors in any event will have to avail their remedies in accordance with law. Considering the fact that the last order in the appeal before NCLAT is 15.04.2019 and sufficient time has elapsed, the NCLAT is requested to dispose of the application pending before it seeking withdrawal of the appeal, as expeditiously as possible within a period of six weeks from this date. Appeal disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It is abundantly clear that the Corporate Debtor had acknowledged its obligation under OTS for an amount of Rs. 2.50 Crore as is evident from the order of the Hon’ble Division Bench in INTERNATIONAL ASSET RECONSTRUCTION COMPANY PVT. LTD. VERSUS M/S ECLAT INDUSTRIES LTD., THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, DEPARTMENT OF INDUSTRIES, INDUSTRIES DEVELOPMENT COMMISSIONER, DIRECTOR, OFFICE OF THE DIRECTORATE OF TECHNICAL DEVELOPMENT DEPARTMENT OF INDUSTRIES, BANK OF BARODA (OPERATING AGENCY) THROUGH ITS CHIEF MANAGER, CANARA BANK THROUGH ITS CHIEF MANAGER, PATNA [2017 (11) TMI 2004 - PATNA HIGH COURT]. It looks that no further a....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In the present case notice of demand was issued on 30.12.2019, hence, we proceed to examine the materials on the record before 30.12.2019 to find out was to whether there was any dispute raised by the Corporate Debtor regarding bills of the Appellant and further whether the dispute raised earlier was not existing on the date when Demand Notice was issued and has subsided as contended by leaned counsel for the Appellant - The Operational Creditor was put to notice that there is short supply of the Supervisor and Security Personnel under the contract which shall result in recovery from the payment and payments for the months mentioned therein has been release....... + More

Seeking permission to resolution applicant to withdraw the resolution plan - HELD THAT:- After noticing the adverse effect on all businesses the Hon’ble Supreme Court in Ebix Singapore [2021 (9) TMI 672 - SUPREME COURT] had laid down that vesting any such power in the Successful Resolution Applicant to withdraw shall be impermissible. In event the submission of the Appellant is accepted that due to financial difficulty he is unable to implement the plan and he be permitting to go back from the commitments made in the Resolution Plan, it shall have disastrous effect on the entire process undertaken. The IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole p....... + More

Seeking liquidation of the Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC having rejected the Resolution Plan submitted by the Resolution Applicant after due deliberation and discussion, the decision taken by the CoC is a decision taken in the commercial wisdom of the CoC which cannot be interfered with in exercise of jurisdiction by the Adjudicating Authority or by this Tribunal. The submission of Learned Counsel for the Appellant that no reasons have been given by the CoC for rejecting the plan has also no legs to stand when a decision is taken after due deliberation. The decision of the CoC is reflected in the result of the voting which cannot be questioned. In so far as reliance on 14th CoC meeting dated 22.07.2021 is concerned, the Resolution Professional has brought into notice of ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice duly done, but outstanding amount not paid by Operational creditor, nor any reply to demand notice was done - HELD THAT:- It is noted that the Operational Creditor supplied the electricity to the Corporate Debtor in the month of April to June and raised 8 invoices for an amount of Rs.1,59,25,360/- .The Corporate Debtor served the demand notice dated 21.10.2019 issued on 22.10.2019 and the same was delivered on 28.10.2019 to the Corporate Debtor. But the Corporate Debtor neither replied to the Demand Notice nor paid the outstanding amount to the Operational Creditor. As per the statement given by the PGVCL for the credited units, all the units a....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - service of demand notice - whether the demand notice in Form 3 dated 13.11.2019 was properly served? - HELD THAT:- The petitioner has placed a copy of the notice which was delivered to the corporate debtor. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- It is to be noted that none appeared on behalf of the corporate debtor despite repeated service and has been set ex parte vide order dated 30.06.2022. It is deposed by way of affidavit by Operational Creditor that reply dated 30.11.2019 was received to its Demand Notice where Corporate Debtor has raised baseless,frivolous, sham and bogus dispute. Also, it is stated tha....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The sale was confirmed and the Financial Creditor has released a sum of Rs. 6.32 crores by selling one of the mortgaged properties of the Corporate Debtor. Hence, the amount due and payable would come to a sum of Rs.1.02 Crore (Approx) after deducting the sale proceed amount from the default amount as mention in this application. It emerges that the Financial Creditor has filed its application only for the recovery of the interests and also that the Corporate Debtor is a going concern and in view of the recent judgment of Hon’ble Supreme Court in VIDARBHA INDUSTRIES POWER LIMITED VERSUS AXIS BANK LIMITED [2022 (7) TMI 581 - SUPREME COURT], it is not sat....... + More

Seeking to declare that the Lease Property is not an asset of the Corporate Debtor and shall not form part of the resolution plan - transfer of the Lease Property or continuation of the lease arrangement in relation to the Lease Property shall be subject to strict compliance with the Agreement and the express approval of the Applicant herein, or not - seeking direction to Respondent No. 1 and Respondent No. 2 to refrain from taking any action in relation to the Lease Property - HELD THAT:- The registered Lease Deed is not a mere Lease Deed and is a registered Lease-Cum-Sale-Agreement under which the Corporate Debtor has already acquired possessory legal rights under the registered document. It is also very clear from the above terms that the Lessee has a right to ask for extension of the lease or for purchasing the above property with abs....... + More

Seeking Liquidation of Corporate Debtor - Section 33 (1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Upon perusing the material available on record, it is observed from the minutes of the 12th CoC meeting that the COC unanimously decided to liquidate the Corporate Debtor. Even though the COC in its 12th meeting unanimously decided to liquidate the Corporate Debtor, no voting was conducted in this regard for the reason best known to the COC. It is important to observe here that more than 397 days has been elapsed without any Resolution application and therefore this Tribunal by virtue of powers conferred under section 33(1)(b)(i), orders Liquidation. Application allowed.

Freezing of proceeds of crime - reasons to believe recorded for retention of the property under Section 20 of the PMLA - HELD THAT:- The appellants are entitled to an opportunity before the learned Single Judge and to file the requisite documents along with affidavit-in-opposition. The order of the learned Single Judge is interlocutory in nature, therefore, the conclusions drawn therein and findings recorded therein are only tentative in nature. The appeal is disposed off by setting aside the last sentence of paragraph 21 of the order of the learned Single Judge which states “WPA 17454 of 2022 is disposed of in terms of the above” and permit the appellants to file affidavit-in-opposition within two working weeks from today before the learned Single Judge in WPA 17454 of 2022 and thereafter, affidavit-in-reply be filed within two working weeks - appeal disposed off.

Money Laundering - proceeds of crime - reverse burden on the suspect - offence under section 3 punishable under Section 4 of Prevention of Money Laundering Act, 2002 - HELD THAT:- Money laundering is the process of conversion of such proceeds of crime, “dirty money” to make it appear as legitimate money. As the Act deals with socio-economic offence, it deviates from the beaten track of the common law on the burden of proof. In fact Section 24 of the Act casts a reverse burden on the suspect. In any proceeding relating to the proceeds of crime under the Act, the Authority or Court shall presume that “such proceeds of crime are involved in money laundering” unless the person charged with the offence of money laundering under Section 3 proves to the contrary. The offence of money laundering is threefold including the ....... + More

Money Laundering - continuation of attachment of the property of the appellant - seeking direction to the respondent to release the said property from attachment - validity of SCN - Non-application of mind - HELD THAT:- It is evident that Appellate Tribunal found that the notice under Section 8(1) was not in conformity with the requirement of the statute and that the adjudicating authority did not form any reason to believe that the noticee had committed an offence under Section 3 or is in possession of proceeds of crime. Therefore, the very foundation for issuance of notice under Section 8(1) was absent. Various other flaws vitiating the order of the adjudicating authority were pointed out by the Appellate Tribunal observing that the same reflected non-application of mind. Appellate Tribunal opined that no purpose would be served by cont....... + More

Money Laundering - Validity of look out circular - proceeds of crime - Constitutional Validity of Section 2(1)(u), Section 50 and Explanation to Section 44 of the Prevention of Money Laundering Act, 2002 - scheduled/predicate offences or not - HELD THAT:- The Hon’ble Supreme Court in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] has been clear and categorical in its reasoning. The undeniable sequitur of the reasoning is that firstly, authorities under the PMLA cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed; secondly, the scheduled offence must be registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum; thirdly, in the event t....... + More

Seeking grant of Interim Bail - applicant had suffered an incident on 14th July, 2022 of fainting and frothing from mouth with numbness of his limbs - whether the treatment in jail was unsatisfactory or inadequate? - HELD THAT:- The Supreme Court in State of UP [2020 (10) TMI 1281 - SUPREME COURT] was dealing with an appeal against an order passed by the Allahabad High Court, Lucknow Bench granting interim bail to an accused on medical grounds for a period of two months while directing the listing of the regular bail application for hearing. Here too the regular bail application has been listed for hearing on 26th September, 2022 in which bail has been sought on the merits of the case along with the interim bail application moved on grounds of ill health. This application as noted above is the second one pleading medical grounds. The deci....... + More

Transfer petition - Constitutional validity and interpretation of certain provisions of the Prevention of Money-Laundering Act, 2002 - procedure followed by the Enforcement Directorate (ED) while inquiring into/investigating offences under the PMLA - effect of amendment in Section 45 of the 2002 - HELD THAT:- The Transfer Petition is disposed of in terms of the judgment in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT].

Money Laundering - seeking grant of regular bail - sick and suffering from serious co-morbidities - commission of scheduled offences - generation, acquisition, layering and siphoning off the proceeds of crime - Section 45(1) of the PMLA - HELD THAT:- The proviso to Section 45(1) of the PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under section 45(1). Whether the applicant falls within the category of sick or infirm so as to grant him the benefit of the proviso to section 45(1) PMLA? - HELD THAT:- In view of the medical report, it leaves no room for doubt that the applicant is both, sick and infirm. He is functioning on 30% capacity of one kidney and the other kidney is dead. He requires consta....... + More

Money Laundering - seeking grant of bail - allegations of money laundering pertain to the year 2011-2013; at that time, the petitioner's age would be around 15-17 years - petitioner had connection with the business's day-to-day affairs or not - HELD THAT:- Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only (INR 1,00,000/-), and furnishing one surety for Rs. Five lacs, to the satisfaction of the ....... + More

Money laundering - Seeking grant of bail - petitioner’s age at the time of commission of the present offence - case is that the accused Vikram Seth operated a few bogus entities in his name and also in the name of the family members - HELD THAT:- Given the petitioner’s age at the time of the offence and that he was a student at Jalandhar, coupled with the nature of allegations against him, there would be no justification to send the accused to pre-trial custody at the stage of framing of the charges. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT] a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. The possibility of the accused influencing the investigation, tampering wit....... + More

Pre-arrest Bail application - Obtaining loan fraudulently - running of bogus firms and inflating the turnover - Correctness of decision of the Directorate of Enforcement not to arrest all the accused - framing of charges - HELD THAT:- Given the nature of allegations against the petitioner, there would be no justification to send the accused to pre-trial custody at the stage of framing of the charges. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In the present case, without commenting on the case's merits, in the facts and circumstances peculiar to this case, the petitioner makes a case for bail, subject to the following terms....... + More

Money Laundering - proceeds of crime - scheduled offence - presumption in interconnected transactions - burden of proof - HELD THAT:- The Court has gone through the materials on record and finds that there are allegations against the petitioners, the company as well as the Directors who are the petitioners in the respective petitions. In paragraph no.17 of the complaint it has been disclosed that their transactions were limited to provide accommodation entries in lieu of cash only that on receipt of cash, cheques were issued to the companies either as share application or loan. One of the witness Shri Mridul Bhowmick at paragraph no.18 of the complaint has stated that he is not knowing that whether any share certificate is in possession and he was not aware whether any share certificate has been issued at all. Vivek Kumar Goenka has said ....... + More

Seeking grant of bail - money laundering - proceeds of crime - incorporation and operation of 450 Indian entities and 104 foreign entities for routing proceeds of crime and also enabling purchase of offices and properties as if with untainted funds - applicability of Section 45 of the PMLA - HELD THAT:- In the present case, therefore, since this is a fresh bail application, the court would be required to consider whether there are fresh circumstances or subsequent events that call for a fresh application of mind or whether it is a mere repetition of previous grounds. Even without the application of the principle of issue-estoppel, the court in order to maintain consistency in the decision making, would be slow in entertaining such pleas, which are mere repetition of the earlier pleas, which had not found favour with it - Since the questio....... + More

Seeking grant of regular bail - Smuggling - Opium - country made pistol - magazine having 5 live rounds - spare magazine having six live rounds - HELD THAT:- The FIR in the present case was registered on 31.05.2022 under Sections 3 and 4 of PMLA, Section 25 of Arms Act and under Section 18 of NDPS Act. As per the reply submitted on behalf of the State, offences punishable under Sections 3 and 4 of PMLA have been deleted upon the verification by Surender Singh, HPS, ACP-III, Panchkula. So, now the FIR in question is with regard to Section 25 of Arms Act and Section 18 of NDPS Act. As per the allegations appearing on record 432 grams of opium was recovered from the possession of petitioner Anju Bhalla while 265 grams of opium was recovered from the petitioner Anjali Bhalla. The aforesaid quantity of opium comes under non-commercial quantity....... + More

Money Laundering - proceeds of crime - Withdrawal/cancellation/ quashing/discontinuation/recalling of the Look Out Circular issued in the name of the Petitioner - seeking permission to Petitioner to return to his home in the United Kingdom - principles of res-judicata - HELD THAT:- The rule of res judicata is based on public policy as finality should attach to the binding decisions pronounced by courts of competent jurisdiction. This is applicable to writ proceedings through the process of judicial interpretation and a party is precluded from initiating fresh legal in respect of same cause of action. If a writ petition is filed in a High Court or Supreme Court and is rejected on merits then a subsequent writ petition cannot be moved on the same cause of action. Even if in the first petition a plea which could have been raised is pot raise....... + More

Seeking grant of Bail - money laundering - cheating large number of investors of Jharkhand by inducing them to purchase plots of land - siphoning off of funds - twin conditions under section 45 of PMLA attracted or not - HELD THAT:- This Court is of the considered view that the provisions of Section 45 of the Act, 2002 prior to judgment of Ho’ble Apex Court in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] had been declared unconstitutional; but the defects in provisions of the said Act was cured by Parliament by way of Amendment Act 13 of 2018 and consequently, the twin conditions of Section 45 while disposing of the bail application under the Act, 2002 stood revived. The twin conditions under Section 45 (1) for the offences classified thereunder a Part-A of the Schedule was he....... + More

Money Laundering - assets disproportionate to known source of income - proceeds of crime - acquittal of the accused - scheduled offences - HELD THAT:- The view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence. The impugned judgment and order is set aside and the order dated 04.01.2019 as passed by the Trial Court, allowing discharge application of the appellants, is restored - Appeal allowed.

Seeking grant of Bail - money laundering - foreign outwards remittances - admissibility of statements of accused - admissible evidences or not - twin conditions as contemplated under Section 45 of PML Act, satisfied or not - HELD THAT:- Insofar as the twin conditions as contemplated under Section 45 of PML Act, the Hon'ble Supreme Court of India repeatedly held in many cases that the duty of the Court is to examine the jurisdictional facts including the mandate of Section 45 of the PML Act, which must be kept in mind. Even post Nikesh Tavachand Shah Vs. Union of Idia & anr. case [2017 (11) TMI 1336 - SUPREME COURT], the Section 45 of the PML Act saw amendment vide from 19.04.2018. After effecting amendment to Section 45(1) of the PML Act, the words “under this Act” are read to sub Section (1) of Section 45 of the PML A....... + More

Seeking direction to 1st respondent to grant extension of time to the respective petitioners to prepare a reply to the show cause notice, for a further period of two months - seeking direction to exclude the two month period from the computation of 180 days under Section 5(3) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The petitioners have to collect information and submit effective reply. It is also not in dispute that several documents running into about 5000 pages were furnished to the petitioners along with the show cause notice. They have to go through the same and submit explanation effectively. It is also not in dispute that C.Parthasarathy, Chairman of Karvy Group of Companies is involved in several crimes and he was arrested. He was released on bail only on 25.06.2022. The Courts concerned have imposed several c....... + More

Money Laundering - Provisional attachment of property - proceeds of crime - Sections 5 and 8 of the PMLA, 2002 - HELD THAT:- The powers of provisional attachment of the property is detailed under Section 5 of the Act. The said Act empowers the Director or Deputy Director authorized to provisionally attach a property for (180) days if he has reason to believe that it is pertaining to proceeds of crime. The Adjudicating Authority (PMLA) was a quasijudicial authority established under the PMLA, 2002. The proceedings before the adjudicating authority were time-bound as per the provisions of PMLA, 2002. For passing order under Section 8(3) in connection with provisional attachment order, the Act prescribes a statutory time limit that the same had to be passed within (180) days from the date of provisional attachment order. The Adjudicating Aut....... + More

Seeking stay of orders of freezing of the accounts of the petitioner - Money laundering - location of proceeds of crime - Section 17(1) of PMLA - HELD THAT:- Section 17(1-A) is an alternative to Section 17(1) for facilitating the measures which are required to be taken in the event search and seizure is not practicable. Section 17(1-A) starts with the opening of an alternative avenue to an authorised officer under Section 17(1) to make an order of freezing a property where it is not practicable to seize the property. The word (used four times) in Section 17(1-A), is the word “such”. The word “such” precedes “record/property” and “order” whereever used in Section 17(1-A). The qualification of property and records by use of “such” fixes the sequence of steps which may be initiated ....... + More

Offence under SEBI ACT - Insider trading - violation of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - HELD THAT:- The contention of the appellant that SEBI took note of the situation in which the respondent was placed and the dire need that he had to sell the shares and that therefore SEBI confined the final order only to disgorgement, is neither here nor there. This argument is actually an argument of convenience. It so happened in this case that according to SEBI the closing price of the stock on 03.09.2013 showed favourable position for the respondent and SEBI was able to calculate as though the respondent made a profit. But if a company is likely to gain strength by making a significant change in its policy, the price of its securities is likely to shoot up. Despite such ....... + More

Offence under SEBI - Unusual price movement in the shares - penalty imposed under Section 15A(a) of the 1992 Act - non-compliance of summons - Non-cooperative attitude of the appellants during the course of the investigation - monetary penalty of rupees one crore on each appellant under Section 15A(a) for failing to comply with the summons issued to the appellants for the production of documents and furnishing of information during the course of certain investigations being carried out by SEBI during the period of 2000-2007 in relation to suspicious purchase and sale of scrip and manipulation of share prices of STIL - HELD THAT:- By not responding to the fresh summons and by not appearing before the Investigating Authority when directed to appear, the appellants’ statements could not be recorded and this has hampered with the invest....... + More

Offence under SEBI - Petitioner seeking documents relied upon by the Respondent-SEBI - sought orders for supply of a copy of the opinion formed under Rule 3 of the SEBI Adjudication Rules 1995, for constituting an Adjudicating Authority to issue Show Cause Notice dated 17th November 2020 to the Petitioner - allegation of Denial of natural justice as relevant material were not disclosed to the noticee - importance of documents relied upon for formation of opinion under Rule 3 - Petitioner had sought inspection of the opinion under Rule 3 - as submitted Adjudicating Authority has not followed the procedure, and instead fixed the case for final hearing without forming an opinion, as required under Rule 4(3) of the SEBI Adjudication Rules 1995 - HELD THAT:- A reading of Section 4(3) makes it clear that, if after considering the cause, if any ....... + More

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

Offence under SEBI - reasonable grounds to believe - Whether the ‘grounds to believe’ which is a condition precedent of initiating an investigation under section 11C did exist in the facts and circumstance of the present case? - whether the two expressions i.e. ‘has reasonable ground to believe’ as appearing in Section 11C of the SEBI Act, 1992 and ‘has reason to believe’ as appearing in Section 34 (1) (a) of the Income Tax Act, 1922 have the same meaning? - HELD THAT:- Reasonable ground is understood to mean the information that establishes sufficient articulable fact that gives a reasonable basis to believe. In other words, to be a reasonable ground, it would have to be based on certain information that establishes sufficient articulable fact to make it a basis to believe whereas existence of cause, e....... + More

Offence under the SEBI Act - Illegal fund mobilization by the accused No.1/company - accused No.1 on an aggregate had allotted Non-Convertible Debentures to at least 14256 persons, thereby making it a public issue of securities and this was done without complying with the regulatory provisions applicable to public issue - Learned Judge issued warrant of arrest against the accused persons - complaint for prosecution for violation of Fraudulent and Unfair Trade Practices relating to Securities Market HELD THAT:- The petitioner himself has filed a document uploaded in the official portal of the Ministry of Corporate Affairs wherefrom it is ascertained that the petitioner was appointed as a director of accused No.1/company on 4th November, 2013 and he remained as director till 23rd August, 2014. Thus, the petitioner was one of the directors o....... + More

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

Chit funding schemes/scam - Investigation Done by the CBI - Petitioner challenged Investigation of the petitioners by the Central Bureau of Investigation (CBI) on the ground of lack of jurisdiction - HELD THAT:- The scale and magnitude of the scam commonly termed as the ‘Chit Fund Scam’ deserves investigation by an agency operating at a national level such as the CBI, since the tentacles of such financial scam, which has adversely affected numerous common citizens, have apparently spread over several states of India. Only the investigation and the trial of the CBI case, on its completion, shall reveal whether the source of money involved in the chit fund scam and rerouting of the huge sums involved can be traced to the petitioner no.1- Company, even if the petitioner, it is assumed is not a chit fund company in the strict sens....... + More

Procedure to be followed by debenture trustees - suit before the Bombay High Court - Evolution of the law surrounding the resolution of debts - Whether the debenture holders and other parties in the present case were required to follow the procedure under the SEBI Circular? - scope of Debenture Trust Deeds - Bombay High Court exercised jurisdiction over the subject matter of the suit - RCFL‘s case that the SEBI Circular is applicable only if the debenture holders choose to enter into an ICA under the RBI Circular - bar to the civil court’s jurisdiction - HELD THAT:- Section 15Y of the SEBI Act stipulates that no civil court shall have the jurisdiction to entertain any suit in respect of any matter which an adjudicating officer appointed under the SEBI Act is empowered to determine. Section 15-I of the SEBI Act provides that an....... + More

Offence under SEBI - Market manipulation of shares - Stay of the proceedings in criminal complaint during the pendency of the main petition - sole basis of filing of the complaint against the petitioner companies is that the accused No.17 has been shown to be one of the Directors of the petitioner companies and has been described to be the person in charge and responsible of the petitioner companies - HELD THAT:- This court directed for issuance of notice which was accepted by learned counsel appearing on behalf of the respondent and the matter was directed to be re-notified on 03.02.2020. However, in the meantime, it was directed that the trial court shall fix a date after the date is fixed in the present petition. On 29.11.2019, it was further noted that the respondent moved an application before the trial court seeking clarification of....... + More

Payment due for the services rendered to the unitholders prior to the winding up - Upfronting of trail commission - inflows through Systematic Investment Plans - Commission payable to mutual fund distributors - FIFA claims that independent financial advisors/mutual fund distributors are entitled to payment of commission agreed between them and Franklin Templeton Asset Management (India) Private Limited, which are in the nature of recurring expenses as per Regulation 52 of the Security and Exchange Board of India (Mutual Funds) Regulations, 1996 - whether asset management companies/mutual funds shall adopt a full trail model of commission in all schemes, without payment of any upfront commission or upfronting of any trail commission, directly or indirectly? - HELD THAT:- FIFA has claimed that the commission payment due to the mutual fund d....... + More

Insider trading - Freezing of bank account - bank accounts of the petitioner and her fixed deposits were freezed by the 1st respondent during the course of investigation - amounts for creation of fixed deposits and savings accounts in question with Karur Vysya Bank and HDFC Banks in the name of the petitioner were the proceeds of the crime and hence were seized during the investigation - petitioner seeking Writ of Mandamus directing the 1st respondent to defreeze the bank account and fixed deposits of the petitioner and savings bank account held in the respondent Nos. 2 to 4/Banks and for consequential directions - HELD THAT:- Admittedly, the petitioner was not shown as accused by the 1st respondent in CC registered against her sons. She was neither the promoter nor the Director of Satyam Computers Services Limited Considering the content....... + More

Offence under SEBI - Period of limitation - Whether this appeal is maintainable? - HELD THAT:- Any limitation prescribed under Section 468 of CrPC can be overlooked if sufficient cause is made out in the facts and circumstances of the individual case in the interest of justice. The said provision, while trying to balance public interest in initiating criminal prosecutions, has been restricted to peculiarities of individual case while clothing the Court with discretionary power. Such a discretion vested in the Court ought to be a principled exercise, wherein the facts and circumstances portrayed justify such an exercise. The intention of the aforesaid provision is to make the inquiry a question of fact and not of untrammelled discretion as to whether in a particular case, the Court should condone the delay. The High Court is bound to consi....... + More

Manipulation of share price - guilty of violating provisions of Section 12A (a), (b), (c) of the SEBI Act read with Regulations 3 (a), 3(b), 3(c), 3(d), 4(1), 4(2)(a), 4(2) (e) and 4(2)(g) of the PFUTP Regulations - imposition of a penalty - huge sale order at a price higher than the last traded price of the company and thereafter to make a self-trade of only one share for that higher price, thus, establishing a new higher LTP - HELD THAT:- In the present case, the WTM, while imposing an order of debarment, has specifically applied her mind to the issue as regards the impact of such a manipulation. While dealing with this aspect, the WTM has observed that the manipulation of the price of scrips seriously impinges upon other counter parties in the securities market. In other words, the impact of a manipulation which is carried out by a par....... + More

SEBI Offence - summons issued under Section 11-C(3), (5) & (6) of the Securities and Exchange Board of India Act, 1992 before the learned single Judge - scope of amendment - HELD THAT:- As investigation can be conducted after the Board has reasonable ground to believe that any person associated with the securities market has violated any of the provisions of the Act, rules or regulations. Since Section 11-C was inserted with effect from 29.10.2002, investigation under Section 11-C can be continued for the transactions occurred prior to 29.10.2002 as well, because the investigation is only a process to find facts, collect evidence materials of a suspected offence/contravention, therefore, the same being procedural in nature, it is retrospective in nature also. When the Board sought for information from the appellants who were found to ....... + More

Interpretation of Regulation 10 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 referred to as ‘Takeover Regulations 1997’ - increase in shareholding beyond 15% (beyond the open offer) - to yield greater influence over management of the company - Power to levy penalty - HELD THAT:- As the Board as well as the Adjudicating Officer have treated the expression ‘acquirer’, for the purpose of Regulation 10, to include a ‘person acting in concert’ and the combined shareholding were taken into consideration for deciding whether there was a breach of Regulation 10. Where the ‘acquirer’, including the ‘person acting in concert’, already had shares or voting rights in excess of the prescribed limit, they were not held guilty of violating Regulation 1028. It ....... + More

Investment Adviser entitled to charge fee for providing investment advice from a client in the manner as specified by the Board - fixation of a maximum cap of fee which may be charged by Investment Advisor violates any fundamental rights of the petitioners - HELD THAT:- In Ehsan Khalid Vs. Union of India [2013 (10) TMI 851 - SUPREME COURT] the Supreme Court had held that where there is a challenge to a Government policy, particularly economic policy, Court would not interfere in such policy matters in exercise of its power of judicial review unless such policy is found to be grossly arbitrary or unfair or unreasonable or irrational or violative of Constitutional provisions or contrary to statutory provision. We are of the opinion that it is not the function of this Court to sit in judgment over a matter of economic policy such as that con....... + More

Contravention of provisions of the SEBI Act - accused company had raised a huge amount of money from general public in contravention of legal provisions and without obtaining approval or clearance from ROC, MCA and SEBI as required under the Companies Act, 1956 and the SEBI Act, 1992 - Liability of directors in alleged offence - accused company did not take any steps for winding up of the scheme or repayment to the investors, nor did it take any steps to comply with the directions of the SEBI issue and has not the refunded money to the investors and caused huge pecuniary damage - acccused no. 2 to 13 in the complaint are the directors/promoters/key management/personnel and persons in charge of and responsible to the Accused No. 1/Company for the conduct of the business and are liable for the violations of sections 56, 60 and 70 read with ....... + More

Implementation of the fraudulent CIS - diversion of funds - as submitted principal perpetrators routed the funds raised from the public and their cooperation grave nature of the charges against the applicant - fake invoices having been generated by the companies in which the applicants were involved - Role of present applicants - Disposal of the present bail applications - HELD THAT:- We have decided the present applications independently of those orders, as the said orders concern directors of PGF/PACL [2013 (3) TMI 390 - SUPREME COURT], whose roles are at considerable variance from the roles attributed to the present applicants by the CBI itself. Suffice it to state that while rejecting Mr. Subrata Bhattacharya’s application for bail, the Supreme Court specifically noted that the matter involved an alleged criminal conspiracy in f....... + More

Offence under FEMA - Eligible charge against petitioner in SCN - no permission was given for repatriation of sale proceeds to person resident outside India and that acquisition and transfer of immovable property by her heirs residing outside India would be covered - petitioner has contravened the provisions of Section 6(3)(i) of FEMA read with Rule 8 of FEMA (Acquisition and Transfer of Immovable Property in India) Regulations 2000 (FEMA Regulations) and thereby petitioner has rendered itself liable to be proceeded against under Section 13(1) read with Section 42(1) of FEMA - HELD THAT:- Issuance of a show cause notice is not an empty formality. Its purpose is to give a reasonable opportunity to the affected persons to contend that they have not committed any breach. Proper opportunity should be given to the person likely to be affected b....... + More

Interpretation of statute - Compounding of offence for non-filing of the annual return by payment of penalty - delay in filing of the annual return - Validity of Notification bearing No.S.O. 1070(E) dated 26.04.2013 issued by the respondent u/s 41 of the Foreign Contribution (Regulation) Act, 2010 - whether impugned notification is ultra vires of the provisions of the FCR Act? - Whether the delay in filing of the returns is an offence punishable under the FCR Act? - HELD THAT:- Petitioner was required to furnish the annual returns in Form FC-6 along with its final accounts (income and expenditure statement, receipt and payment account and balance sheet) within nine months of the end of the relevant financial year. Therefore, the petitioner was required to file the annual return for the financial year ending on 31st March of any year on or....... + More

Violation of the provisions of the FERA - proceedings to be initiated within a particular period provided under the Statute - As submitted authorized dealer, before permitting the deposits of foreign currency, was required to satisfy himself that the foreign currency is deposited by the NRI Account Holder himself; that the account holder is on a temporary visit to India; and that the account holder is still normally resident abroad - whether High Court has grossly erred in holding that it was for the first time that the stipulation regarding the deposits of foreign currency by the account holder himself, was expressly provided for by Circular dated 31st July 1995 and therefore the Circular dated 31st July 1995 could not have had a retrospective operation? - HELD THAT:- We are of the view that the show causes notices issued in the year 200....... + More

Stay of recovery - whether any hearing can take place before the Tribunal qua the subject matters to be listed before the Tribunal even if these four members are appointed in the absence of the Chairman of the Tribunal. Learned ASG seeks some time to obtain instructions? - HELD THAT:- We had earlier also posed a query to learned ASG and pose it again as to why we should not pass an order directing stay of recovery proceedings in all matters before the Tribunal as the judicial remedy is before the Tribunal and if the Tribunal is not being constituted to hear the matter, which is resulting in unnecessary expenses to the litigants to approach the High Court and burden on the High Court to deal with those matters. List on 02.08.2022.

Offence under FEMA - cash money which was seized from the residence the husband of the petitioner No.1 and two other petitioners, who are the daughters, belonged to the petitioners - noticees referred therein were asked to give response to the same within 30 days from the date of receipt of the said notice as to why adjudication proceedings as contemplated under Section 16 read with Section 13 of FEMA, 1999 should not be held against them - HELD THAT:- Writ Court in exercise of its Constitutional writ jurisdiction under Article 226 of the Constitution should not investigate the ownership of such disputed amount of cash money seized from the possession of one of the noticees at Kolkata in course of search and seizure in question while petitioners are claiming the same as their own money. It is well settled principle of law that High Court ....... + More

Offence under FEMA - Levy of penalty post compounding orders - Power to compound contravention - HELD THAT:- The compounding order is passed on 20.11.2008 and the adjudication order levying penalty is passed on 21.11.2008, i.e., one day after the passing of the compounding order. Sub-section (2) of section 15 as alluded to hereinabove clearly envisages a position that once a contravention has been compounded under sub-section (1) (which in the present case has been compounded on 20.11.2008), no proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing the contravention. We cannot hold petitioners responsible for contravention once the compounding orders have been passed. We have noted that there is a gap of “one day” between the passing of the two s....... + More

Offence under FEMA - Scope of alternate remedy - violation of Section 4 of FEMA - Whether the writ petition is liable to be dismissed as not maintainable on the ground of availability of alternate remedy and the writ petition is premature? - HELD THAT:- FEMA is a complete Code in itself and is an act to consolidate and maintain law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange management in India. It also states that when statute creates a special mechanism for adjudication and when statute itself provides for remedy that too in a physical statute, a writ petition should not be entertained ignoring the statutory dispensation. The above judgment in Raj Kumar Shivhare [2010 (4) TMI 432 - SUPREME COURT] was rendered on ....... + More

Amounts released despite the stay order - on query ASG accepts this - HELD THAT:- Prima facie this is contempt of the orders of this Court. On our asking the query as to which of the Officer(s) to whom the contempt has to be issued, learned senior counsel states that the amount will be released within 3 days and that this Court may hold its order on issuance of notice of contempt. We take this stand of the learned ASG on record. Insofar as the constitution of the Tribunal is concerned, the affidavit states that the Search-cum-Selection Committee was appointed in terms of Order dated 26.10.2001. The process thereafter is taking place. It is pointed out to us that the Chairman demitted office on 21.9.2019 being a retired judge of the High Court and thereafter a Single Member Tribunal doing only interim proceeding work and he too demitted of....... + More

Provisional attachment orders made under the provisions of FEMA - prayer for grant of interim directions was opposed by learned CGSC who contended that the Certificate of Registration (COR) of the petitioner already stands cancelled by the Reserve Bank of India (RBI) - HELD THAT:- Insofar as the question of cancellation of the COR is concerned, the Court notes that the same would have no bearing on the issues which arise in the present writ petition since that constitutes action taken by the RBI under the statutory provisions contained in the Banking Regulation Act, 1949. The said action would only impact the right of the petitioner to continue the business which was permitted. The Court notes that insofar as the release of Rs. 15.5 crores is concerned, it was submitted by Mr. Ganesh that the aforesaid sum has not been released in fact an....... + More

Foreign Exchange Regulatory Appellate Board confirming the order passed by the Assistant Director imposing penalty and confiscating as per section 63 of the Foreign Exchange Regulation Act, 1973 - HELD THAT:- Though the Appellant may be right in insisting on compliance of the order of this Court as it is and it is because of the pendency of the litigation that the Appellant is agreeable for receipt of the amount in Indian rupees, the Appellant cannot be penalized but must be compensated in fair manner. Accordingly, we direct that the order passed by this Court be complied with by the Enforcement Directorate within a period of eight weeks, with a clarification that the amount of US$ 1,300 should be converted in Indian rupees as per the rate prevailing as on today i.e. 14 June 2022 and be paid to the Appellant within a period of eight weeks....... + More

Offence under FERA - Non-realization of payment towards exported goods - “reasonable steps” to be taken for securing the sale proceeds of exports or not? - concerned buyer in France became bankrupt and therefore, some of the export proceeds against the said consignments could not be realized - HELD THAT:- Any person effecting an export of goods is also responsible, rather duty bound, to also effect the securing of proceeds from such export/sale. The only exception, as per the language of the provision, is permission from the RBI, which if obtained may lead to granting of the leverage of not securing the proceeds within the stipulated and prescribed period. Further, sub-section 3 makes a presumption against the person who has not been able to secure the proceeds from exports that he/she has not taken all reasonable steps so as ....... + More

Offence under FEMA - prejudice on account of infraction of the procedure - main ground of challenge was that the impugned notice was issued without complying with the Rule 4(1) and Rule 4(2) of the Rules of 2000 - HELD THAT:- The adjudicating authority is required to give the notice under sub-rule (1) to the concerned person requiring him to show cause as to why inquiry should not be held against him indicating the nature of contravention alleged to have been committed by him. After considering the cause, if any shown, and on forming an opinion that an inquiry should be held, the adjudicating authority is required to issue notice under sub-rule (3) fixing the date of appearance. In the present case, undisputedly no notice in terms of sub-rule (1) and (2) of Rule 4 has been given and straight away notice under sub-rule (3) of Rule 4 has be....... + More

Offence under FEMA - Petitioner argued that the adjudicating authority did not follow the procedure prescribed in Rule 4(1) and 4(2) of the Adjudication Rules of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - petitioner has been seriously prejudiced by refusal and failure to supply documents relied upon by the complainant Assistant Director - HELD THAT:- In the instant case, failure to bring back export proceeds to the extent of seven thousand crores arose out of loan transactions between the petitioner and his entities and about 23 banks. It is now well settled that every infraction of the principles of natural justice or procedure stipulated for adjudication would not vitiate a proceeding. The petitioner has to demonstrate actual and real prejudice The two tier procedure under Rule 4 which warrants a....... + More

Offence under FEMA - maintainability of writ petition before this Court - HELD THAT:- This Court finds that the writ petition filed at Jaipur Bench, Jaipur for challenging the order dated 26.04.2019 passed by the Additional Director, is not maintainable as no cause of action has arisen in the territory of State of Rajasthan. The submission of the petitioner that initially a complaint was filed by the Additional Director and further direction to deposit the penalty amount in Jaipur Office, cannot be termed as a part of cause of action. This Court finds that the complaint which was filed against the petitioner, has resulted into issuance of show cause notice to the petitioner and thereafter, adjudication has to take place and as such the petitioners cannot be allowed to state that part of cause of action, has arisen in the territory of Stat....... + More

Legality and validity of the seizure orders - HELD THAT:- The facts of the case reveal that before the learned Single Judge, though a prayer for quashment of seizure orders dated 26.08.2021, 30.09.2021 and 15.12.2021 was made, an interlocutory application was preferred for release of ₹ 15,35,45,317/- and the learned Single Judge has allowed the application. The writ petition itself has been disposed of by the impugned order dated 11.02.2022. In the considered opinion of this Court, once the seizure orders were not set aside and no statutory provision was brought to the notice of the learned Single Judge for release of such amount and the seizure orders have been affirmed by the competent authority under Section 37A(2) of the Act, no such provisional release could have been ordered by disposing of the writ petition itself. Learned co....... + More

Seizure orders - respondent No.2 has seized an amount of approximately 270 crores and has transferred a substantial portion of the said amount to its own bank account - HELD THAT:- Several circumstances are narrated with regard to the hardship which the petitioner Company would face, if an amount of ₹ 15,35,45,317/- is not ordered to be released. Under these circumstances, in order to keep the petitioner Company alive and to enable it to meet its day to day expenses like payment of salaries to its employees, payment of taxes, statutory dues and operational expenses etc., this Court, in the interest of justice, deems it appropriate to direct the respondent No.2 to release an amount of ₹ 15,35,45,317/- (Rupees fifteen crores thirty five lakhs fourty five thousand three hundred and seventeen only), which is commensurate with the ....... + More

Offence under FEMA - enquiry contemplated under Section 16(3) of the Foreign Exchange Management Act, 1999 on the basis of complaint by an Authorized officer as provided for under the said sub-section - As argued show-cause notices are not in compliance with the procedure prescribed under Rule 4 of 2000 Rules - HELD THAT:- We are of the view that no indulgence is warranted in the matter of issuance of impugned show-cause notice dated 08.04.2021 and the notice for personal hearing dated 28.06.2021. Adjudicating Authority is yet to hold an enquiry and thereafter take a decision to initiate proceedings for imposition of penalty under Section 13 of the FEMA. Thereafter, the petitioner has a remedy of filing appeals viz. (1) under Section 17 to the Special Director (Appeals) against the orders of the Adjudicating Authorities, being an Assistan....... + More

Violation of provisions of FCRA, 2010 - Suspension of certificate - suspension u/s 13(1) of the FCRA, 2010 - HELD THAT:- This Court, in the facts of that case had set aside the suspension order on two grounds, firstly, no reasons have been spelt out in the suspension order and secondly, the respondents have neither issued Show Cause notice nor initiated an inquiry by the time the suspension order was passed. Insofar as, stating the reasons for suspension is concerned, as concluded above, the reasons have been given in the impugned order. To that extent, the judgment has no applicability. Insofar as the conclusion of the Court by the time the suspension order was passed neither an inquiry was initiated nor any Show Cause notice was issued is concerned, it is my conclusion that the process of inquiry was started in the year 2017. So, it is ....... + More

Non-payment of service tax - it is alleged that noticee is charging and collecting service tax from their clients on the taxable service provided but not depositing the same with the Government exchequer - failure to submit returns in the form ST 3 to the service tax department on due date as per the section 70 ibid read with rule 7 ibid - failure to maintain proper records under rule 5 ibid - abatement as per the Notification No 15/2004-ST dated 10.09.2004 - time limitation. HELD THAT:- It is evident from the facts of the case that the appellant are merely providing the taxable services simplicitor without any element of transfer of the material along with the service. The contracts for provision of services wherein not transfer in property occurs, qualify as service contracts simplicitor. In case of service contracts simplicitor there c....... + More

Levy of service tax - life insurance service - non-compete fees - exclusivity bonus - It is the contention of the tax authorities that non-compete fee and exclusivity bonus paid to agents from 2007 to 2011 was not consideration for such forbearance as the agents were not working exclusively for them and, hence, was commission, and liable to tax - reverse charge mechanism. HELD THAT:- The right of a disputant to carry decisions of the Tribunal to the next level in the appellate hierarchy embodied in the tax statute is not to be detracted from but the mere filing of an appeal does not alter the authority of the order so impugned unless it be stayed or until it be overruled. As an adjudicating authority, expected to be compliant with judicial discipline, the correct approach on his part cannot be faulted. Nor has Learned Authorized Represent....... + More

CENVAT Credit - input services - GTA Service - merged entity - Special Purpose Vehicle (SPV) namely JK Environ-tech LTD (JKETL) received the GTA services - HELD THAT:- The appellant and JK Environ-tech LTD (JKETL) have merged w.e.f 01.04.2013 is not in dispute. It is also not in dispute the services were received by the JK Environ-tech LTD (JKETL) for the period 01.04.2013 to 30.09.2015, i.e. after 01.04.2013, the appointed date from which the two are entities have merged. It is seen that the Tribunal in the case of COMMISSIONER OF SERVICE TAX, DELHI I VERSUS ITC HOTELS LTD [2011 (9) TMI 837 - CESTAT, NEWDELHI], have held that any business conducted by the respondents is to be held as having been conducted on behalf of the transferee company. As such, the service tax provided to the ITC Ltd. and Ansal Hotels Ltd. have to be considered as ....... + More

Taxability - amounts expended for meeting operational costs of overseas offices - payments received for arranging and operating of ‘outbound tour’ services - period up to March 2012 - scope of the expanded definition of section 65(115) of Finance Act, 1994 - HELD THAT:- The change in the statutory provision has added elements to the activity that makes for being ‘tour operator’ and, in both the unamended and amended version, entirety of performance in India is the criterion for subjecting the consideration to tax. That is the only conclusion that can be arrived at from perusal of Export of Service Rules, 2005 which categorizes the scheme of export in terms of the enumeration of ‘taxable service’ in section 65(105) of Finance Act, 1994. Insofar as service taxable under section 65(105)(n) of Finance Act, ....... + More

Disallowance of refund claim - amount in respect of invoices issued by AB Commercial for transportation of iron ore fines - to be qualified under ‘GTA services’ or ‘Cargo Handling Services’? - HELD THAT:- The Adjudicating authority vide Order-in-Original dated 23.09.2010 had allowed the refund claim of the Appellant in respect of the transportation Bills issued by AB Commercial totaling to Rs.2,22,119/- observing that the goods were carried upto the point of port of export from origin and that this is sufficient to have a nexus with the exportation of the goods. Thus, the amount of Rs.2,22,119/- is liable to be considered for sanction. Subsequent to the above order of the Adjudicating authority sanctioning the refund, the Department had preferred an Appeal before the Commissioner of Central Excise (Appeal-I) allegi....... + More

Reversal of CENVAT Credit - Capital Goods cleared as waste and scrap - amount required to be paid in terms of rule 3(5A) of the Credit Rules for capital goods cleared as scrap - Appellant is output service provider - period of dispute in the present case is from 1.3.2011 to 16.3.2012 and 27.09.2013 to 31.03.2015 - HELD THAT:- In terms of payment of the amount under rule 3(5A) of the Credit Rules during the said relevant period, only a 'manufacturer' was required to pay the amount in case of clearance of capital goods as scrap and not an output service provider. The appellant, being an output service provider, was not required to pay any amount in terms of rule 3(5A) of the Credit Rules during the period involved in the present appeal for clearance of capital goods as scrap. Whether the capital goods involved in the present case wh....... + More

CENVAT Credit - duty paying documents - debit note suffices for the documentation requirements prescribed in rule 9 of CENVAT Credit Rules, 2004 or not - whether such debit notes/invoices pertaining to reimbursements of diesel and electricity costs incurred by the service provider on which tax under Finance Act, 1994 has been duly discharged enables the recipient to take credit? HELD THAT:- The availment of credit, whether against invoices or against debit notes that contain substantially the same information as prescribed in rule 9 of CENAT Credit Rules, 2004 stands settled by the decision of the Tribunal and of the several High Courts. It is seen from the debit notes, as well as the invoices in question, that, while the adjustments reflect the separate charges as provided in the master service agreements, discharge of tax liability ther....... + More

Levy of penalty u/s 78 of FA - Short payment of service tax - Short payment found during the course of audit - HELD THAT:- The appellant has accepted the demand with regard to non-payment of service tax under various categories of services. One of the issue was whether the amount that has to be paid under works contract services was to be treated as original works or maintenance work. Other issue was whether the tax has to be paid under manpower supply services or works contract service. It is seen that there are interpretational issues. There is no iota of evidence adduced by the department that the appellant has committed any positive act of suppression of facts with intention to evade payment of service tax. Further, the appellant is an undertaking under the State Government of Tamil Nadu and for these reasons, it is a fit case to set ....... + More

Levy of penalty u/s 78 of FA - demand of service tax for the period post 18.04.2006 and interest thereon has been paid prior to issue of show cause notice - services received from overseas under reverse charge mechanism in terms of Section 66A of the Finance Act, 1994 - HELD THAT:- The appellant have admittedly paid the service tax on the service received from foreign country in terms of Section 66A on reverse charge basis and interest thereupon was also paid before issuance of show cause notice. The issue on merit is whether there is levy of service tax on reverse charge mechanism on the service received from the overseas. This issue has undergone litigation in various cases before various forums. The hon’ble Supreme Court in the case of UNION OF INDIA VERSUS INDIAN NATIONAL SHIPOWNERS ASSOCIATION [2009 (12) TMI 850 - SC ORDER] hel....... + More

Non-payment of appropriate service tax - Commercial & Industrial Construction service - Construction of Residential Complex Service - Works Contract Service - Consulting Engineer Services - Supply of tangible goods service. Construction works - HELD THAT:- Admittedly for the construction works, the appellant was not only providing services but was also providing the material. The submission of learned counsel for the appellant is that such a service provided by the appellant would be covered under the ‘works contract’ service w.e.f. 01.06.2007, as was held by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] where it was held that Works contract were not chargeable to service tax prior to 1.6.2007 - thus, demand not sustainable........ + More

Exemption from service tax - works contract - sub contractor - construction services like construction of roads, laying down of water pipelines, construction of boundary walls, construction work required for erection/installation of road lights etc. - Applicability of N/N. 25/2012- ST dated 20.06.2012 - HELD THAT:- It is not in dispute how many services like construction of roads, laying down of pipelines etc were provided within the confines of GIDC. It is also not in doubt that GIDC is operated under Gujarat Industrial Development Act, 1962 and is developed by the state government of Gujarat for establishment and for organizing industry in industrial areas. In these circumstances all the services provided by the appellant within the confines of GIDC directly, GIDC would be covered under Sr. No. 12 (a) of Notification 25/2012- ST only if....... + More

Refund of unutilized CENVAT Credit of the Service Tax paid - input services - Air Travel Agent Service - Car Parking Service - Hotel Service - Foreign Exchange Service - Rent-a-cab Service - Construction Service - Event Management Service. HELD THAT:- The denial of CENVAT Credit on the impugned services relating to Air Travel Agent Service, Car Parking Service, Event Management Service, Rent-a-cab Service and Foreign Exchange Service is required to be allowed since the denial is held to be incorrect. To this extent, therefore, the impugned order is set aside and the claim of the appellant is directed to be allowed. Hotel Services - HELD THAT:- This Bench in the earlier Order had remanded the issue for fresh consideration to the file of the Adjudicating Authority and hence, the same is required to be followed here as well. This issue, ther....... + More

CENVAT Credit - iput services or not -- Maintenance or Repairs service - Consulting Engineer Service - Management Consultant Service - Erection & Commissioning service - Information Technology services received from a foreign service provider - reverse charge mechanism - HELD THAT:- This issue was correctly decided by the Adjudicating Authority inasmuch as Section 66A was added retrospectively in Rule 3 for allowing Cenvat credit. Whether the services in question are admissible input service in terms of Rule 2(l), this issue was never raised in the show cause notice. Therefore, it cannot be expected from the Adjudicating Authority to pass order on the issue which is beyond the scope of show cause notice. It is settled law that any issue which is not flowing from the show cause notice being beyond the show cause notice, need not be add....... + More

Levy of Service Tax - Repair and Maintenance Service - repairs of nozzles - period involved is 2006-07 and 2008-09 - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- It is found from 16.05.2005 there was a clear liability of service tax on Repair and Maintenance, ignorance of law cannot be of any excuse for discharging the statutory liability of the taxes. The appellant have not registered themselves nor filed any return during the relevant period therefore, there was clear suppression of facts on the part of the appellant. Cum-tax value - HELD THAT:- The appellant is agreed upon that where any gross amount is charged from the service recipient, the same shall be treated as value inclusive of all including service tax. Levy of simultaneous penalties under Section 76 and 78 - HELD THAT:- The issue is ....... + More

Levy of service tax - banking and other financial services - premium on interest restructuring of loan as interest on loans - whether restructuring premium charged by respondent falls under lending or not? - suppression of facts or not - extended period of limitation - HELD THAT:- The respondent was to receive total interest of Rs. 10,800 in next 3 years at the original interest rate of 9% as agreed upon but due to lowering down the interest rate to 6%, respondent will now receive Rs. 07,200 at 6% rate of interest in next 3 years. Therefore, to compensate for the loss of interest that is going to be caused to the respondent for reduction in rate of interest due to interest restructuring, respondent computed net present value of such loss (which comes out to Rs. 03,269.88/-) and collected 50% of the same as premium for interest restructuri....... + More

Valuation of mining services - inclusion of free of cost fuel/diesel supplied by service recipient i.e., ONGC in terms of agreement is includible in taxable value of mining services - HELD THAT:- The decision in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] is squarely on the issue under consideration, where it was held that The service tax is to be levied in respect of ‘taxable services’ and for the purpose of arriving at 33% of the gross amount charged, unless value of some goods/materials is specifically included by the Legislature, that cannot be added. Appeal allowed - decided in favor of appellant.

Legislative disbarment of levy of tax on goods transport agency service - clearing and forwarding agency service - inclusion of the value thereof in support service of business and commerce - Amalgamation of two services - HELD THAT:- The two services sought to be amalgamated are not only independently taxable but differs in the mechanism of collection and should, intuitively, be immiscible. The provisions of section 65A of Finance Act, 1994 and section 66F of Finance Act, 1994 have not been appreciated in its context. The said statutory enablement is intended to be invoked when the nature of the service, and the consideration thereto, are not perceptibly divisible and differential treatment necessitates adoption of the appropriate rate of tax to the whole. In the present dispute, the rate of tax does not pose any difficulty; it is only t....... + More

CENVAT Credit - documents evidencing availment of proper credit though were not submitted before the Department at the time of adjudication of the proceeding - Non-imposition of penalty - HELD THAT:- Since both sides agree that the issue regarding availment of CENVAT Credit and imposition of penalty should be looked into afresh by the original authority, the matter is remanded with a direction to re-adjudicate the matter with regard to the findings made in the impugned order, concerning availment of CENVAT Credit and imposition of penalty therein. Further, the original authority should also examine the taxability issue of the disputed service whether the same should be liable for payment of Service Tax under the provisions of Service Tax statute. The matter is remanded to the original authority for fresh adjudication of the matter - the appeals are allowed by way of remand to the original authority.

Validity of adjudication order - reasonable opportunity of hearing to the appellant not provided - principles of natural justice - HELD THAT:- The original authority at paragraph 5.1 in the adjudication order dated 07.04.2017 has stated that he is taking up the matter for adjudication and passing the order ex-parte inasmuch as the appellant did not appear for the personal hearing fixed on several dates - it transpires that the principles of natural justice have not been properly followed, while passing both the adjudication as well as the impugned order by the lower authorities. Hence, under such facts and circumstances of the case, we are of the considered view that the matter should go back to the original authority for fresh adjudication of the dispute. Matter remanded to the original authority for fresh adjudication, and for that purp....... + More

Recovery of service tax directly from Senior Advocates for the legal services - relationship between a Senior Advocate and an advocate / firm as that of a client and counsel - effect of N/N.18/2016-ST dated 1.3.2016 (Annexure-3) and N/N. 9/2016-ST dated 1.3.2016 (Annexure-4) - HELD THAT:- It is evident that the Central Government, vide Notification No.25/2012 dated 20.06.2012 exempted certain services from the ambit of Section 66B of the Finance Act, 1994. Serial No.6 of the said notification exempted services provided by an individual as an advocate or a partnership firm of advocates by way of legal services to an advocate or partnership firm of advocates providing legal services, any person other than a business entity or a business entity with a turnover up to Rupees ten lakh in the preceding financial year. It is evident that both the....... + More

SSI Exemption - Clubbing of clearances - dummy units - Split Air conditioners - all such different entities are being owned by same person or not - documents which were obtained fraudulently by suppressing the facts or not - Confiscation - penalties - HELD THAT:- The Appellant 2 and Appellant 3 admitted to their role in the alleged activities for evading the central excise duty they also admitted the fact that they were collecting the duty @ 30 % on the value of goods supplied to their Customers as Central Excise Duty as per the contract, but were not paying the same to government account. Hence, there are no hesitation in holding that the both Shri Shrikant Shiwadkar and Shri Jayant Shiwadkar were in complete knowledge of the things in relation to clearance of these goods without payment of duty. These goods which have been cleared witho....... + More

CENVAT Credit - inputs - Wash Oil and Sulphuric Acid which were used directly or indirectly, in or in relation to the manufacture of coal Gas - manufacture of Coke Oven Gas can be said to be final and complete unless it is made usable and/or marketable, or not - whether Wash Oil and Sulphuric Acid have no role to pay in the production of coke oven gas and these are merely used in the production of the by- products or not - scope of the Rule 57C(2) read with Rule 57CC of the Central Excise Rules, 1944 and/or Rule 57AD of the Central Excise Rules, 1944 and/or Rule 6(3)(b) of Cenvat Credit Rules, 2002 - suppression of facts or not - extended period of limitation. HELD THAT:- The undisputed facts are that the assessee is an integrated steel plant and in their factory they manufacture and clear excisable goods falling under Chapters 26 to 29, ....... + More

Scope of SCN - time limitation - Disallowance of transitional Modvat credit - Levy of penalty upheld - invocation of extended period of limitation to deny Modvat credit for contravention of provisions of Rules 57H(1)(b), 57G, 173G and 173B of the Central Excise Rules, 1944 - suppression of facts or not - HELD THAT:- The Ld. Joint Commissioner has observed that the assessee has suppressed the fact of availing the benefit of SSI exemption under Notification No. 1/93-CE by not paying the duty on finished goods during the period in dispute i.e. 1994-95, which allegation was not made in the SCN dated 02.04.1996 and, therefore, the proceedings have travelled clearly beyond the scope of allegations made in the SCN which cannot be legally sustained. The main reason that has been assigned to disallow the credit in the impugned order is that the Ap....... + More

CENVAT Credit - capital goods - Welding Electrodes - case of appellant is that welding electrodes are used for fabricating Steel Formers (size: Diameter 1100mm & Height 2350mm with 16mm rods as Spiders inside) which are consumed in its induction furnace - levy of penalty - HELD THAT:- In view of the decision of the Hon’ble Calcutta High Court in CCE., KOLKATA-IV VERSUS HINDUSTAN ENGINEERING & INDUSTRIES LTD. [2010 (12) TMI 393 - CALCUTTA HIGH COURT], which is the jurisdictional High Court of this Bench, and particularly in the absence of any contrary decision holding the field, the issue regarding admissibility of Cenvat Credit on Welding Electrodes has to be decided in favour of the appellant, as the same being no longer res integra. Levy of penalty - HELD THAT:- In light of the undisputed fact that the Appellant was regula....... + More

Clandestine Removal - Gutkha - period involved in the show cause notice is from December 2007 to 04.08.2008 - demand of duty alongwith levying penalty on Partner - HELD THAT:- It is not in dispute that the search was conducted on 04.08.2008. At that time the unamended rule 17(2), which had come into force on 01.07.20008, was operating. The amended rule 17(2) came into force on 20.10.2008 and there is nothing in the amended Rules that may show that they shall apply retrospectively w.e.f. 01.07.2008. The contention of the learned authorised representative appearing for the department that merely because the amended rule 17(2) states that such machine shall be deemed to have been in operation since 01.07.2008 it would mean that the amended rule 17(2) shall apply retrospectively from 01.07.2008 cannot be accepted The amended rule 17(2) would ....... + More

CENVAT Credit - inputs (used in the Cement manufacturing process) or not - Welding Electrodes and Dissolved Acetylene Gas (D.A. Gas) - period from April, 2013 to June, 2017 - HELD THAT:- The adjudicating authority had observed that Welding Electrodes and D.A. Gas were used in the cement manufacturing plant of the Appellant for the purpose of repair and maintenance of its plant and machinery. This being observation of the adjudicating authority there is no denial of the fact that plant and machinery which were being used for manufacturing of final product were being kept in usable with condition periodic repair and maintenance, in which these two components were being used. Hence, both Welding Electrodes and D.A. Gas are required for smooth process of manufacturing, for which definition of input provided under Rule 2(k)(i) is squarely appl....... + More

CENVAT Credit - capital goods or not - square rail - input services - insurance premium on motor vehicles owned by the Appellant - violation of Rule 16 of Central Excise Rules, 2002 read with Rule 9 of Cenvat Credit Rules, 2004 - duty paying invoices - suppression of facts or not - extended period of limitation - penalty. Denial of credit of 50% amounting to Rs.17,650/-, which has been used for construction of support structures for movement of cranes - HELD THAT:- The issue is no more res integra and is squarely covered by the decision of the Tribunal in the case of EURO CONTAINERS VERSUS COMMISSIONER OF C. EX., CHANDIGARH-I [2013 (9) TMI 1089 - CESTAT NEW DELHI] where reliance has been placed on Tribunal in the case of Mastech Technologies Pvt. Ltd. v. CCE, Jaipur-I [2013 (5) TMI 241 - CESTAT NEW DELHI], where it was held that the steel....... + More

CENVAT Credit - input services - Repair and maintenance of factory/ office premises/plant and machinery - GTS Services - credit availed on the strength of invoices for freight for receipt of input/ fuel, issued by the supplier / trader - HELD THAT:- Admittedly appellant have received the construction service towards repair and maintenance carried out in the factory premises. The repair and maintenance have been specifically provided as input service in the in the inclusive clause of the definition, which provides for credit with regard to services received for repair of a factory or office relating to such factory. Further, this issue is squarely covered by the precedent order of this Tribunal in appellant’s own case M/S. BALKRISHNA INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX AND CENTRAL EXCISE, ALWAR. [20....... + More

Recovery of the irregularly availed Cenvat credit alongwith interest and penalty - appellant paid excess service tax on inward freight under the category of “Transport of Goods by road in a goods carriage", and subsequently availed excess Cenvat credit on input services - HELD THAT:- From the impugned order and the arguments as recorded the fact of payment of service tax is not in dispute. Once the fact of payment of service tax is not disputed the CENVAT Credit availed by the appellant which is equal to the tax paid cannot be disputed. In the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT], the Hon'ble High Court of Mumbai held that during the relevant period, that is, during the period from 2nd March 2005 to 31st December 2005, it could not be said that th....... + More

CENVAT Credit - input services have been used in or in relation to the manufacture of the said dutiable final products as well as exempted goods - non-maintenance of separate records - period from July, 2010 to March, 2014 - requirement to pay an amount equal to 5% (effective up to 16.03.2012) and 6% (w.e.f.17.03.2012) of the value of exempted goods or not - HELD THAT:- This Tribunal in the case of M/S PHILIPS CARBON BLACK LTD., M/S PROMODE KUMBHAKAR VERSUS CCEX & SERVICE TAX, DURGAPUR AND CGST & EXCISE, BOLPUR VERSUS M/S PHILIPS CARBON BLACK LTD. [2020 (1) TMI 530 - CESTAT KOLKATA] had held that non-compliance of the procedure prescribed under Rule 6(3A) of the Cenvat Credit Rules, 2004 does not result in loss of substantive right of the assessee to avail the option of reversing proportional credit and such non-compliance is at b....... + More

Reduction in the amount of refund, which was in the nature of predeposit - whether interest have been rightly allowed under Section 35FF of the Act? - principles of unjust enrichment - time limitation - HELD THAT:- A Division Bench of this Tribunal in the case of Parle Agro Ltd [2021 (5) TMI 870 - CESTAT ALLAHABAD], under similar facts and circumstances, have held that interest is payable also on the amount paid during investigation/audit as well as the amount of pre-deposit and further such interest is payable @ of 12% per annum, following the ruling of Hon'ble Supreme Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT]. Hon'ble Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, COIMBATORE VERSUS M/S. PRICOL LTD., THE CUSTOMS, EXCISE & SERV....... + More

CENVAT Credit - duty paying documents - case of Revenue is that the invoices of GMIPL are not valid documents for taking credit as they do not pay the service tax after taking credit of the tax paid by the broadcaster - suppression of facts or not - extended period of limitation - HELD THAT:- From the perusal of the invoices issued by the broadcaster, it is quite evident that the name of the appellant appears on each and every invoice of the service provider as recipient of the service. That being so the credit taken by the appellant on the basis of the invoices issued by the broadcaster cannot be denied as the invoices clearly show the recipient of service as appellant. Further now the appellants have received these services through M/s Group M Media India Pvt. Ltd., who have enclosed the invoices of the broadcaster alongwith their invoi....... + More

Clandestine removal - Ingots - demands of duty made on account of alleged production based on the number of heats and alleged clandestine removal based on parallel invoices - demand based on the private production records of the appellant - demand based on the 12 parallel invoices recovered from the appellant’s office. Demand based on the number of heats of manufacture every day and the average quantity of MS Ingots produced per heat - HELD THAT:- According to the appellant itself the cross-section of the ingots is 3.5 inches X 4.5 inches. If the total volume of the ingots per inch is converted into cubic centimeters and the weight of 1.96 kg. per inch is considered, the density of the MS Steel ingots produced by the appellant is consistently around 7.59 gms. per cubic centimeter which is consistent with the density of the mild stee....... + More

Grant of interest on the amount deposited during investigation which has subsequently been ordered to be refunded - interest at the rate of 6 per cent under the notification dated 21.08.2014 issued under section 35FF of the Central Excise Act, 1944 - HELD THAT:- The Allahabad High Court in Pace Marketing Specialties v/s Commissioner of Central Excise [2011 (8) TMI 796 - ALLAHABAD HIGH COURT] while granting interest at the rate of 12 per cent had relied upon the decision of the Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] - the view taken by the Allahabad in Pace Marketing is followed by the Division Bench of the Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD]. The appe....... + More

Area Based Exemption - activity of the appellant of making nail polish from base liquer and colour solution - process amounting to manufacture or not - eligibility of Notification dated 10.06.2003 - HELD THAT:- The issue involved in this appeal was considered and decided by a Division Bench of the Tribunal in GS PHARMABUTORS PVT. LTD. (UNIT-II) VERSUS ADDITIONAL DIRECTOR GENERAL, (ADJUDICATION) [2022 (2) TMI 615 - CESTAT NEW DELHI]. It was held that the appellant was entitled to the benefit of the area based notification dated 10.06.2003. The appellant, therefore, for all the reasons stated in the aforesaid Division Bench decision of the Tribunal in GS Pharmabutors, would be entitled to the benefit of the area based exemption Notification dated 10.06.2003 - Appeal allowed - decided in favor of appellant.

CENVAT Credit - duty paying documents - Revenue was of the view that availment of Cenvat credit on the basis of order-in-original was not proper as per Rules 3 & 9 of the Cenvat Credit Rules - HELD THAT:- In the present case the appellant has not paid any excise duty for which they are required to make claim for refund of duty. It is the case where certain credit taken by them was sought to be denied and during the course of the proceedings for denial of such Cenvat Credit, the appellant reversed the entire credit sought to be disallowed to them. Subsequently major portion of such credit has been allowed to them. If Revenue had any objection to the order-in-original they should have preferred an appeal before the appropriate authority. By way of issuing second show cause notice they could not have denied the benefit granted to the appellant in the first round of proceedings. Appeal allowed.

Eligibility for concessional rate of duty in terms of Notification No. 6/2011-CE dated 01.03.2011 - Perforated Nickel Cylinders (Screen) - HELD THAT:- The very same issue has been decided by this Tribunal in STOVEC INDUSTRIES LTD VERSUS C.C.E. -AHMEDABAD-I [2021 (12) TMI 240 - CESTAT AHMEDABAD] where it was held that the appellant has classified the impugned goods under CTH 844250 which includes “Plates,cylinders and other printing components;”. The appellant is entitles for benefit of Sno. 41 in list 2 of notification no. 06/2011-CE dated 01/03/2011. The appellant are entitled for the exemption Notification 6/2011-CE dated 01.03.2011 and subsequent exemption under Notification No. 12/2012-CE dated 17.03.2012 - Appeal allowed - decided in favor of appellant.

CENVAT Credit - agreement entered into by the noticee with their consignment stockist - sales promotion agreement or a commission agent agreement for sale of goods? - eligible input service or not - Explanation inserted by notification No. 02/2016-CE(NT) dated 03.02. 2016 into the definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 is retrospective in nature or otherwise? - allegation against the respondent is that the commission paid to various parties was only for the purpose of procuring orders for the respondents and nothing more - Extended period of limitation - suppression of facts or not. HELD THAT:- The basis for issuance of the show cause notice was the decision in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD - II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT]. The sai....... + More

Rejection of de-sealing of the machine and DG sets - non-filing of fresh declaration in compliance with Trade Notice 04/2020-2021 dated 18.01.2021 - HELD THAT:- The contents of the Panchnamas filed as Annexure-P/1 to P/4 along with the writ petition clearly reveal that these panchanamas were pasted at the front gate of the factory premises. The security guard was also present at the time of the search therefore, it cannot be believed that the petitioner did not know about these searches. Even otherwise, after a lapse of two years challenging the panchanamas is of no consequence when show cause notice has been issued to the petitioner. The petitioner may raise all the available grounds in reply to the show cause notice before the adjudicating authority. Shri Malhotra learned Counsel for the petitioner has failed to point out any prejudice ....... + More

Reversal of CENVAT Credit - breakage of glass beverage bottles - recovery of excise duty in respect of these breakages treating them as finished goods beverages, along with interest and penalty - HELD THAT:- The present case is not in respect of the loss of goods during storage or transportation but is case of the demand of the duty in respect of the breakages of glass bottles during storage and handling. Further the issue is with regards to applicability of the Circulars of 1971 and 1975 to determine whether the breakages was within the prescribed limit. Since the issue in our view is not covered by the above provision of the section 35 B of the Central Excise Act, 1944 the objection raised by the authorized representative cannot be sustained. The reliance placed by the Commissioner (Appeal) on the Circular dated 09.07.2010 to decide the....... + More

Maintainability of petition - availability of alternative remedy - submission of the learned counsel for the appellant is that though the appellant had merely asked for adjournment, the learned Single Judge has dismissed the Writ Petition by giving liberty to the appellant to workout the remedy - HELD THAT:- There are no merits in the present Writ Appeal. It is noticed that the time granted by the learned Single Judge for filing the appeal against the orders of the respondent vide impugned order dated 23.06.2022 while dismissing the Writ Petition, has expired. Therefore, while dismissing this Writ Appeal, the period granted by the learned Single Judge for filing the appeal is further extended by another two weeks from the date of receipt of a copy of this order. Appeal dismissed.

Exemption under Section 5(3) of the Central Sales Tax Act, 1956 - sale made to the merchant exporter - specific case of the petitioner is that the impugned order passed by the Appellate Tribunal is erroneous inasmuch as it has not considered the fact that M.G. Plain Kraft Paper supplied by the petitioner to the merchant exporter, which was converted as Parcel Leaf did not undergo any change. HELD THAT:- The Law on the subject is settled in terms of the decision of the Hon'ble Supreme Court in STATE OF KARNATAKA VERSUS AZAD COACH BUILDERS PVT. LTD. AND ANOTHER [2010 (9) TMI 879 - SUPREME COURT] which has been also followed by this court in three decisions, referred supra. Further, on perusing the records, particularly the commercial invoice raised by the petitioner on the merchant exporter and the purchase order of the foreign buyer fr....... + More

Validity of assessment order - filing of return of income indicating the total taxable turnover and paid output tax after adjusting the Input Tax Credit - HELD THAT:- The appellant appeared before the respondent and submitted a detailed reply along with documentary evidence. Without properly considering the same, the respondent passed the fresh assessment order dated 25.01.2022, on a different footing that the business carried by the assessee is a typical example of bill trading activity where there is no actual movement of goods at all proved by way of payment of transportation charges and loading/ unloading charges. The said order of assessment was questioned by the appellant by filing WP.No.9659 of 2022. Though the appellant / assessee raised very many grounds assailing the orders impugned in this writ appeal as well as in the writ pet....... + More

Enhancement of sale turnover as well as purchase turnover - books of accounts rejected on framing of assessment - adjustment of admissible input tax credit - HELD THAT:- It is not in dispute that a survey was conducted on the premises of the assessee firm on 24.04.2014. Six loose papers were found during the survey. Paper No. 1 relates to 660 piece 8 mm tube bag which was purchased by the assessee firm from unregistered dealer and transaction of paper no. 3 which was sale of battery to one Manendra Goswami for Rs.19,000/- was subsequently entered into the books of account which was produced at the time of assessment. From the perusal of the order of the Tribunal, it is clear that it has not recorded any finding as to how it has arrived at only reducing the quantum to such extent when it has recorded that entries in the books of account fo....... + More

Levy of purchase tax - Section 12(1)(c) of the TNVAT Act, 2006 - right of the dealer to seek exemption if the dealer is able to establish that its turn over for the relevant years is less than Rs.300 Crores - principles of natural justice - HELD THAT:- The learned Special Government Pleader also fairly submitted about the legal position, wherein under Section 15 of the TNVAT Act, there has been a total exemption provided for certain items, where Schedule IV states about various items wherein Entry 68 speaks about pulses and other items which have been dealt with by the petitioner/dealer herein. But the only catch is that the total turn over shall not be more than Rs.300 Crores. The ground on which the revisional authority remanded the matter to the assessing authority to reconsider the issue by giving an opportunity to the petitioner to p....... + More

Reassessment of tax - liability towards tax, interest and penalty - business of manufacturing and selling pan masala - Section 9 (2) of the Central Sales Tax Act, 1956 read with Section 22 (1) of the Chhattisgarh Value Added Tax, 2005. Case of petitioner is that without there being an order of assessment, the respondent authority erred in passing an order of reassessment under Section 22 (1) of the Act of 2005. HELD THAT:- The provisions of Section 22 of the Act of 2005 would show that period prescribe for exercising jurisdiction by the Commissioner is to start from the date of order of assessment or from the date of judgment or order of Court or Tribunal. The language used in Section 22 of the Act of 2005 is plain and unambiguous that the Commissioner can exercise jurisdiction under Section 21 (1) only when there is an order of assessmen....... + More

Classification of goods - rate of tax - Aviation Turbine Fuel (ATF) - eligibility for concessional rate of tax - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The petitioner will appear before the Assessing Officer on Thursday, the 29th of September, 2022, without awaiting any further notice in this regard, along with a copy of reply dated 29.02.2012 and other materials, if any, in support of its claim of concessional rate of tax. The petitioner should be heard in full and a speaking order passed in this regard determining the appropriate rate of tax on ATF within a period of 8 weeks from date of personal hearing - Petition allowed.

Condonation of delay of 584 days in filing revision - exclusion of COVID period i.e. from 15.03.2020 till 10.02.2021 as per decision in the case of IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] - satisfactory explanation for delay was given or not - HELD THAT:- The delay is sought to be explained by contending that the order passed by the learned Tribunal was served on the revisionist on 09.04.2019 although a proposal for filing of the revision was sent on 28.10.2020 to the office of Additional Commissioner Grade-2, Commercial Tax, Lucknow and a letter was also forwarded on 06.11.2020 seeking permission and sanction for filing revision was received from the Law Department on 10.12.2020 yet despite best efforts the revision could only be filed on 10.02.2021. The delay is sought to be explained on the ground of....... + More

Jurisdiction - delegation of power to an Officer not below the rank of Deputy Commissioner (CT) and to conduct the enquiry - Section 64 (4) of the TNVAT Act - HELD THAT:- The issue that has been raised in the present appeal is no longer res integra and the Division Bench of this Court has settled the issue in Joint Commissioner (CT), Chennai and others Vs. M/S. Original Vel Sporting News, Rep. by its Manager, Mr. Dinesh Kumar Soman [2019 (6) TMI 1586 - MADRAS HIGH COURT], where it was held that the order of the learned Commissioner under Section 64(4) of the Act is a quasi-judicial order, requiring a prior notice of hearing to the assessee and passing of a reasoned speaking order in individual cases of registered dealers for conducting audit by the specified Authority as directed by the Commissioner. Thus, it is clear from the above that ....... + More

Works contract - inter-state trade - Benefit u/s 3F(2)(b) of the U.P. Trade Tax Act - contract in question was individual in nature or not? - whether the value of goods received by the assessee from its manufacturing unit situated at Vadodara outside U.P. to the State of U.P. in pursuance of contract entered by the assessee with Bharat Petroleum Corporation is covered by Section 3 of Central Sales Tax Act and is deductible from the net taxable turn over? - HELD THAT:- The U.P. Trade Tax Act not only covers the field of levies on sale and purchase of the goods in U.P. but also of transfer of rights to use any goods which has been covered by definition of sale. Section 3-F of the Act of 1948 imposes liability upon every dealer to pay tax on the net turn over of transfer of property in goods involved in the execution of work contract. Sub-se....... + More

Additional levy of tax on supply of cement to the contractor by the Assessee - Sale of Cement - point of sale - HELD THAT:- It is an admitted fact that Tata Steel Ltd. purchased cement after paying tax, which was leviable at first point of tax and supplied the same to its contractor for executing works in its behalf and has, admittedly, deducted the amount towards supply of cement from the bills of the Contractor - Thus, in view of the ratio of the Judgments laid down by the Hon’ble Apex Court in the cases of NM GOEL AND COMPANY VERSUS SALES TAX OFFICER, RAJNANDGAON [1988 (10) TMI 106 - SUPREME COURT], and RASHTRIYA ISPAT NIGAM LTD. VERSUS STATE OF ANDHRA PRADESH [1998 (2) TMI 480 - SUPREME COURT], there is no dispute on the proposition that transaction of supply of cement by the Assessee to its contractor and recovery of the amount....... + More

Supplier company seeking security depositing against interstate sale - C-Forms - differential sales tax - Section 43 of the PVAT Act - HELD THAT:- It is abundantly clear that IOCL is, by providing for this requirement, protecting itself against any unanticipated liability, including shortfall of C Forms in cases of defaulting dealers, to be made by a dealer either in cash or by way of security, whenever called upon by the Corporation, pending subsistence of the agreement. There is no doubt that a dealer can be called upon to furnish a Bank Guarantee in any exigency as contemplated by the Corporation, and the dealers would have no choice but to comply - the mandamus as sought for by the petitioners is not liable to be granted and the prayer is rejected. The dealers may, if they so desire, make representations to the Corporation setting out....... + More

Adjustment of amount of tax paid on inter-state sale transaction, against the tax to be paid to the State of Jharkhand - HELD THAT:- The appellant - Tata Motors Limited was liable to pay central sales tax to the State of Jharkhand. However, treating the sale as stock transfer, the appellant/its representative had paid the tax on the aforesaid transaction to the State of Andhra Pradesh which is not leviable by the State of Andhra Pradesh. Therefore, the amount of central sales tax recovered by the State of Andhra Pradesh is required to be transferred to the State of Jharkhand and the same is required to be adjusted towards the amount of tax to be paid to the State of Jharkhand. In the present case the transaction is for the period prior to insertion of Section 22(1B) to the Act 1956 and the impugned order has been passed by the Appellate A....... + More

Validity of assessment order - concessional rate of tax - computation of the turnover refers to Form 'C' - time limitation - Section 18 of Central Sales Tax Act - HELD THAT:- Section 18 sets out a limitation of five years from the expiry of the year to which the assessment relates, for assessment of escaped turnover. Thus, for determination of the turnover that has allegedly escaped assessment for the period 2003-04, the period of five years would expire by 31.03.2009 whereas the impugned notice has been issued only on 04.12.2020. The re-computation of turnover under notice dated 04.12.2020 and the consequent denial of exemption under the provisions of the Central Sales Tax Act are set aside - the purpose of re-determination of the turnover and denial of exemption is only to proceed as aginst the petitioner under the provisions of....... + More

Maintainability of application - Existence of Authority for Clarification and Advance Ruling, with the enacting of the TNGST Act, 2018 - Section 174 of the TNGST Act - HELD THAT:- In view of the stand taken by the petitioner, I need hardly address the defence taken by the respondents, as I accede to the submissions made by the petitioner, concluding that, both the application and the impugned order would survive no longer. It is brought to my notice that the assessments for various years have been kept pending by the Authority awaiting disposal of this writ petition and in light of an interim order passed by this Court on 04.11.2019 directing the respondents to maintain status quo. This order has been interpreted by the respondents to mean that all assessment should be kept pending. Seeing as the assessments relate to the periods 2014-15, 2017-18, a period of 16 weeks is granted to the parties to complete all pending assessments in accordance with law. Petition disposed off.

Eligibility for exemption in terms of the provisions of the Tamil Nadu Urban Land Tax Act, 1966 - income derived from the letting out of the lands, utilized fully for the purposes of the temple - section 27 of Tamil Nadu Urban Land Tax Act, 1966 - rejection of exemption solely on the ground that no undue hardship is caused to the petitioner by calling upon it to remit tax - HELD THAT:- With the recognition of, and exemption granted to religious institutions by virtue of the authority under Section 27 of the Act, there is a presumption that the payment of Urban Land Tax causes undue hardship to them. The authority has erred in revisiting the aspect of undue hardship, as it has been taken none of the accepted by the State in the aforesaid Government Order. There is no other reason for the denial of exemption and the impugned order is thus s....... + More

Recovery of dues (commercial tax arrears) - Seeking registration of charge in respect of the property - purchase of property through public auction - Section 24-A of TNGST Act - HELD THAT;- Reliance upon the provisions of Section 24-A are misplaced in the facts and circumstances of this case. Section 24 of the Act sets the stage for the raising of a valid demand. To invoke the protection afforded by Section 24-A, the revenue must engage in some constructive act, such as identification of the properties of a defaulting assessee, communication with the assessee concerned in that regard, issuance of a notice of attachment in statutory form, communication of the attachment to the sub-registrar concerned for creation of charge and ensuring that the encumbrance certificate reflects such charge. The respondent officials, have not, in the present....... + More

Jurisdiction of HC to entertain the writ petition bypassing the statutory remedy of appeal - Validity of assessment order - belated notice of demand - AO called upon the assessee to produce relevant documents and also to show cause as to why it should not be assessed under the relevant provisions of Section 23 of the MVAT Act - HELD THAT:- It is required to be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal. In that view of the matter, the H....... + More

Binding Judgement of Lager Bench / Majority decision - strength of the Bench - Levy of sales tax - Classification of goods - Pan Masala, which contains tobacco and gutka - covered by an Entry in the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act 1957, or not - taxability by the State under the Delhi Sales Tax Act 1975 and/or the Uttar Pradesh Trade Tax Act 1948 and/or the Tamil Nadu General Sales Tax Act, 1959? As per INDIRA BANERJEE J. HELD THAT:- It is well settled that once goods are chargeable under the ADE Act, the State cannot levy sales tax on the same goods under a State enactment. In KOTHARI PRODUCTS LTD. VERSUS GOVERNMENT OF ANDHRA PRADESH [2000 (1) TMI 823 - SUPREME COURT], the question was, ‘tobacco’ being specified in the First Schedule to the ADE Act, and exempted from Sales T....... + More

Initiation of Recovery proceedings - transfer of goods, plant, and machinery (immoveable property) - bonafide purchaser - Section 34 of the U.P. Trade Tax Act - HELD THAT:- Section 34 of the Act shall be applicable only in a case where there is a transfer of immovable property belonging to the original assesee, during the pendency of any proceedings under the Act with the intention of defrauding any such tax or other dues. As per proviso to Section 34, nothing in Section 34 shall impair the rights of a transferee in good faith and for consideration. Thus, the power of Section 34 can be exercised only in a case where the transfer of immoveable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be with the intention to defraud any such tax and other dues. In....... + More

Appointment of arbitrators to resolve the dispute between the parties - preliminary inquiry or inquiry on whether the dispute is arbitrable or not, ws not held - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- On a bare reading of Clause 36 of the Agreement, it clearly stipulates that in the event of any dispute as mentioned in Clauses 3, 6 and 9, other party shall have a right to get the Agreement specifically enforced through the appropriate court of law - with respect to any dispute as mentioned in Clauses 3, 6 & 9, such disputes are not arbitrable at all. It cannot be disputed that both the parties are governed by the Addendum Agreement dated 19.04.2011. In the recent decision in the case of Vidya Drolia [2020 (12) TMI 1227 - SUPREME COURT], which, as such, is post insertion of Section 11(6A) of the Arbit....... + More

Maintainability of petition - rectification of mistake - error apparent on the face of record or not - HELD THAT:- There is no error apparent on the face of the record, warranting reconsideration of the order(s) impugned. The Review Petitions are, accordingly, dismissed.

Validity of decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 - validity of the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP - whether the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary? - HELD THAT:- The respondent No.1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that ....... + More

Award of interest - it is alleged that learned Arbitrator has grossly erred in awarding interest for the period from 1977 to 1989 inasmuch as the respondent was in deep slumber for a period of twelve years and did not take any step for raising his claim - HELD THAT:- The undisputed position is that though final measurement was done on 30st August 1977, for a period of twelve years, i.e., till 25th July 1989, the respondent did not take any step to raise his claim. It is only on that date, i.e., 25th July 1989, the respondent issued a notice to the appellants regarding his claim. As such, the very conduct of the respondent for remaining silent for such a long period would disentitle him for the interest during the said period. Similarly, though a decree was passed on 14th February 1990 and the respondent was directed to file the original a....... + More

Detention of detenue - Delay in passing the order of detention from the date of proposal - snapping the “live and proximate link” between the prejudicial activities - failure on the part of the detaining authority in explaining such delay - suppression of facts - vital fact of the appellant detenu being released on bail in both the cases was suppressed or rather not brought to the notice of the detaining authority by the sponsoring authority at the time of forwarding the proposal to pass the appropriate order of preventive detention. Delay in passing the order of detention - HELD THAT:- It becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of th....... + More

Direction to deposit the amount of performance bank guarantees pertaining to purchase order Nos. 01, 02 and 03 - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- When the bank guarantees were already invoked and the amounts under the respective bank guarantees were already paid by the bank much prior to the Commercial Court passed the order under Section 9 of the Arbitration Act, 1996 and looking to the tenor of the order passed by the Commercial Court, it appears that the Commercial Court had passed the order under Section 9(ii)(e) of the Arbitration Act, 1996 to secure the amount in dispute, it is opined that unless and until the preconditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless primafacie the Court is satisfied that the appell....... + More

Seeking grant of Regular Bail - criminal conspiracy with unknown officials of NSE - exchange of bribe money - it is alleged that NSE and its employees had committed fraudulent and unfair trade practices and violated SECC Regulations - offences punishable under sections 120-B and 204 IPC; under section 7, 12 & 13(2) read with section 13(1)(d) of PC Act, 1988 and under section 66 of I.T. Act, 2000. Whether filing of charge sheet by the respondent/CBI before concerned court on 21.04.2022 pertaining to offences punishable under sections 13 (1)(d) and 13(2) of the PC Act and section 120 B IPC is sufficient compliance of section 167 (2) of the Code to deny statutory bail or default bail to the applicant/accused as argued by the respondent/CBI or said charge sheet is incomplete or piece meal charge sheet and does not fall within ambit of sec....... + More

Application for appointment on compassionate ground - application rejected stating that due to veracity of vacancies request for compassionate appointment could not be acceded - HELD THAT:- The fact remains that the employee died in the year 1994 and the wife of the employee was provided with an appointment on compassionate ground. She served and subsequently, she also died. Thereafter, the writ petitioner submitted an application and withdrew the same and re-submitted after a lapse of about two years. Thereafter, the brother of the writ petitioner also submitted an application seeking compassionate appointment after rejection of the application submitted by the petitioner. Pertinently, the brother of the writ petitioner originally submitted no objection to provide appointment to the writ petitioner. Subsequently, the petitioner filed an ....... + More

Dishonor of Cheque - existence of legally enforceable debt or not - burden to prove - rebuttal of presumption - Section 139 of the Negotiable Instrument Act - HELD THAT:- Section 139 of the Negotiable Instrument Act raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge of any debt or other liability. Section 139 speaks of presumption of law. It is needless to say that such presumption is rebuttable and onus lies on the drawer to rebut it by adducing cogent evidence to the contrary - It is held by the Hon’ble Supreme Court in BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT] that the presumption under Section 139 of the Negotiable Instruments Act is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its....... + More

Enforcement of Foreign Arbitral Award - contempt of the order of court or not - acts of commission or omission on part of Contemnor Nos.9 and 10 and the entities controlled by them - control on assets of entity - banks and financial institutions sold the shares which were pledged with them, purely as a matter of commercial expediency or whether there was any deliberate act of defiance to defeat the rigour and width of the orders passed by the High Court and this Court ? - deliberate attempt to defeat the processes of Court or not - Whether the acts of commission or omission on part of Contemnor Nos.9 and 10 and the entities controlled by them, were calculated to put the assets of the companies under their control beyond the reach of Daiichi? - Having given clear assurances to the High Court and this Court, whether such acts of commission ....... + More

Dishonor of Cheque - insufficiency of funds - fading of the ink of the signatures - whether the cheque were not signed at the time of filling up of the contents of the pro-notes and cheques? - HELD THAT:- It is pertinent to note that as per the directions of the learned Single Judge in A. INAYATHULLAH VERSUS A. RAMESH [2015 (1) TMI 1482 - MADRAS HIGH COURT], the Assistant Director appeared before the Court and informed that there is no scientific method available anywhere in this State, that there is one institution known as Nutron Activation Analysis, BABC, Mumbai, where there is facility to find out the approximate range of the time, during which, the writings would have been made and he submitted that even such opinion cannot be exact. He further submitted that the said Nutron Activation Analysis is confined only to atomic research, th....... + More

Legality and validity of the notification dated 11.06.2020 issued by the Ministry of Environment, Forest and Climate Change - advisory for dealing with import of exotic live species of animals and birds in India and declaration of stock - HELD THAT:- The judgment of the Allahabad High Court in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT] is a complete answer to the present PIL filed by the petitioner. Any interpretation to the contrary as suggested by the petitioner would defeat the very object of the Advisory. Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exoti....... + More

Legality of possession of all exotic animals/ birds by persons (other than those who have made voluntary disclosure with the time contemplated in Advisory, dated 11.06.2020(Annexure -3), issued by Respondent No. 1 - whether the person in possession of such exotic animals/ birds be forthwith prosecuted for violation under the Customs Act by Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972? - HELD THAT:- The Advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species. The exemption that is provided in the Advisory is limited to dispensation with explanation of source of exotic species. Consequence of non-declaration within the time stipulated in the Advisory is that the owner of exotic species is required to comply with all requisite documentation under ....... + More

Possession of the secured assets in exercise of powers under Section 14 of the SARFAESI Act - tenancy rights - scope and ambit of the powers to be exercised under Section 14 of the SARFAESI Act - while exercising the powers under Section 14 of the SARFAESI Act, the District Magistrate/designated authority could have passed such an order that unless and until the secured creditor terminates the tenancy rights of the third person by following due procedure of law and further orders regarding possession of the mortgaged property then and then only an application under Section 14 of the SARFAESI Act will be decided? HELD THAT:- On a fair reading of Section 14 of the SARFAESI Act, it appears that for taking possession of the secured assets in terms of Section 14(1) of the SARFAESI Act, the secured creditor is obliged to approach the District M....... + More

Dishonor of Cheque - existence of legally enforceable debt or not - Civil wrong or not - burden to prove - section 138 of NI Act - HELD THAT:- A perusal of the facts show that the cheque in question was issued on 08.10.2014 and it was dishonoured on the third day i.e. on 10.10.2014. It is a matter of record that there is no agreement between the parties for execution of any work. No bill is produced by the petitioner qua incurring any expenditure in execution of the contract. The respondent has successfully discharged the onus to prove that there was no admitted liability against her. There is no evidence on record to establish that there was any legal debt or liability against the respondent/accused. The learned Appellate Court has found that the agreement for providing services was terminated immediately and, therefore, the demand was m....... + More

Dishonor of Cheque - discharge of legal debt or not - genuineness of books of accounts - cross examination of accountant of the firm - offence u/s 138 of the Act - HELD THAT:- The present petitions are liable to be dismissed as in para 1 of the complaint, specific stand has been taken that proper account books are being maintained during its regular course of business and the respondent-complainant wanted to examine the Accountant of the Firm, only in order to prove the factum of the account books and outstanding amount in order to prove the legally enforceable debt and the said material is very important for the just decision of the complaint and further, by summoning the income tax records, the complainant wanted to substantiate the legal debt and the outstanding amount of the accused Firm. Further, no prejudice will be caused to the pe....... + More

Commercial quantity under the NDPS Act - percentage of a narcotic drug - recovery of 110 bottles of Phensedyl New weighing 100 gms each and having a Codeine concentration of 0.17% per bottle - Seeking grant of bail In case of manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between or not? Whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug? HELD THAT:- It is an admitted position that in the present case, the seized substance i.e. 110 bottles of ‘Phensedyl....... + More

Decree for recovery of possession in respect of plot - It is alleged that the said adjacent plot of land is also in the unauthorised occupation of the Appellant - mesne profit - HELD THAT:- The existence of a cause of action and/or, in other words, the existence of circumstances giving cause for initiation of action is imperative for initiation of a suit. A suit can only be entertained when the cause of action has arisen and not otherwise. Any future event does not constitute cause of action. The cause of action is the fact or bundle of facts which would be necessary for the plaintiff to plead and prove, in order to get a judgment of the Court in his favour. The cause of action is the expiry of the lease of the suit property, that is Plot No.4/4 and refusal of the Appellant to vacate the suit property in spite of request, and the conseque....... + More

Dishonor of Cheque - insufficient funds - rebuttal of presumption - discharge of burden to prove - preponderance of probabilities - section 138 of NI Act - HELD THAT:- The law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. In the case on hand, it appears that the accused did not adduce any evidence. Though during cross examinatio....... + More

Application for referring the matter to arbitration - existence of arbitration agreement between the parties - whether the documents on record, upon which the parties have placed reliance, demonstrate existence of such an arbitration clause/agreement? - HELD THAT:- This Court is of the opinion that the trial Court committed a grave error in failing to appreciate the true purport of the documents on record. For an arbitration agreement to come into existence between the parties, there ought to be a document executed on behalf of both the parties, showing consensus ad-idem, incorporating such an arbitration clause/agreement. The only document signed on behalf of both the parties is the letter of intent dated 12/07/2012, which admittedly contains no arbitration clause/agreement. Similarly, even the purchase order dated 16/07/2012, which is s....... + More