Territorial jurisdiction of high court - settlement application - Second Respondent is a resident of Hyderabad in the State of Telangana and aggrieved by the action taken against him by the Petitioner, whose office is also situated at Hyderabad in the State of Telangana, he made an application in Settlement Application in Madras high court - HELD THAT:- Reason stated by the Petitioner for having approached this Court instead of High Court of Telangana at Hyderabad is that the 'seat of authority' of the First Respondent is situated at Chennai within the territorial limits of jurisdiction of this Court. Even if it is assumed that in addition to the High Court of Telangana, this Court would also have territorial jurisdiction, the principle of forum conveniens would come into play as held by the decision of the Division Bench of this ....... + More

Rejection of accounts - estimation of income - failure on the part of the assessee to provide site wise expenses, labour, proof of address & identity of labourers, the genuineness of the labour expenses was not established - reduction of Net Profit rate @ 6.5% on the total receipt by CIT-A instead of 12% applied by the A.O.- HELD THAT:- In the present case it is not in dispute that the A.O. rejected the books of account by pointing out various discrepancies in the books of account mentioned by the assessee. It is well settled that in case the books of accounts are rejected the only way to work out the income is the application of gross / net profit rate on the turnover or receipts of the assessee. Net profit rate to be applied should be reasonable and the past history of assessee’s own case is to be considered. Assessee had show....... + More

Long Term Capital gain recomputation - not allowing deduction towards cost on account of interest capitalized to cost of asset - no nexus between the capital borrowed and its utilization for acquisition of the property - assessee was selected for scrutiny assessment under CASS - HELD THAT:- AO did not assign any reason as to why the explanation of the assessee was not acceptable when under the similar facts and circumstances, claim of the assessee regarding capitalization of interest was allowed in the earlier year. This approach of the AO is contrary to the settled principles of law. It is incumbent upon the assessing officer at least assign the reason as to why he was adopting a different view then the adopted by its predecessor in earlier years. CIT(A) recorded the finding that the issue of capitalization was not examined by AO as the ....... + More

Provision of exgratia expenses - allowable expenses OR contingent liability - HELD THAT:- In the case of the assessee, on finalization of accounts for the year ended 31.3.2009, the matter of appropriation of the net profit was considered by the Board of Directors of the assessee bank at its Board meeting held on 26.5.2009, wherein resolution was passed to the effect of recommending payment for exgratia to employees. Pursuant to such approval, the exgratia payment becomes due to the employees and the said amount was credited to ‘Provision for Ex-gratia Payment Account’ in the books of accounts of assessee bank for the year ending 31.3.2010. Said exgratia to employees were actually paid by the assessee bank on 17.8.2009 and hence we hold that the same cannot by any stretch of imagination, could be held as contingent liability - ....... + More

TP Adjustment - comparable selection - HELD THAT:- Functional profile of the assessee as described in the transfer pricing documentation, in respect of the ITES segment, shows that the assessee being a subsidiary of Steria UK Corporate Limited, a software service company in the United Kingdom (“UK”), provides IT enabled services (ITES) to the clients of its associated enterprises; that the marketing function including client acquisition is performed by the associated enterprise and the assessee performs ITES activity in relation to work outsourced /sub-contracted by the associated enterprise to the assessee; that it provides back office process outsourcing and inbound and outbound voice-based services; and that the delivery centers of the assessee are located in Noida, Chennai and Pune, from where Steria India delivers work on....... + More

Relief u/s 90 - Disallowance u/s 40(a)(ii) - payment of “State Taxes” - HELD THAT:- In Reliance Infrastructure Ltd. [2016 (12) TMI 1293 - BOMBAY HIGH COURT] has held that the assessee was entitled to deduction for foreign taxes paid on income accrued or arisen in India in computing its income, to the extent that such tax was not entitled to the benefit of section 91 of the Act. Facts being identical, we follow the said judgement and also the above order of the Co-ordinate Bench and direct the AO to verify whether the State taxes paid by the assessee overseas are eligible for any relief u/s 90 of the Act and if it is not found to be so, assessee’s claim of deduction should be allowed. Disallowance u/s 40(a)(ia) - business expenditure being deduction towards interest, which is compensatory in nature, paid on account of del....... + More

TP adjustment - payment made towards field supervision services - assessee had rendered certain services to its AE termed as field services and received after providing discount @15% - TPO, while determining the ALP of such services rendered to AE held that the discount allowed is not at arm's length and accordingly made adjustment - HELD THAT:- We find, while considering identical issue in assessee's own case in Assessment Year 2006-07, the Tribunal [2011 (9) TMI 261 - ITAT MUMBAI] has accepted the price charged by the assessee to the AEs towards provision of field services after allowing discount to be at arm's length. We delete the addition which is not covered under the MAP proceedings. These grounds are partly allowed. Disallowance of cost contribution charges u/s. 37(1), section 40A(2)(b) and section 40A(i) - HELD THAT:-....... + More

Estimation of income - Bogus purchases - CIT-A restricted addition being 12. 5% of the purchases made from the said suspicious dealers - HELD THAT:- As decided in own case [2020 (6) TMI 718 - ITAT MUMBAI]we direct the AO to restrict the estimation of profit to 8% of the disputed purchases.

Reopening of assessment u/s 147 - assessment after 4 years - reason to suspect OR reason to believe - violation of the provisions of section 13(1)(c) r.w.s. 13(2)(g) - A.O. has not disposed off the objections filed by the appellant by passing a separate speaking order - HELD THAT:- In the present case, the original assessment for the assessment year 2009-10 was completed u/s. 143(3) of the I.T. Act on 25/11/2011 and notice for re-opening of assessment was issued to the assessee on 13/04/2015. As per the provisions of section 147 of the I.T. Act if in any assessment year and if after expiry of four years from the end of the relevant assessment year, action sought to be taken u/s. 147 of the I.T. Act, such action can be only in cases where income chargeable to tax has escaped assessment in such assessment year by reason of failure on the pa....... + More

Disallowance of club services and facilities used for entertaining the customers and to promote the business interests of the company - expenses allowable u/s 37(1) - HELD THAT:- The assessee has incurred the expenses on account of club membership fees for the employees and to entertain customers, so, these were business expenses under section 37(1) of the Act. We therefore by following the ratio laid down in UNITED GLASS MFG CO. LTD. [2012 (9) TMI 914 - SUPREME COURT], delete the disallowance made by the A.O. and sustained by the Ld. CIT(A). - Decided in favour of assessee.

Non filing of appeal electronically - Penalty proceedings u/s. 271(1)(c) - Exemption u/s. 11 (1)(d) denied - voluntary contributions received in the name of various funds and is considered as the corpus donation - HELD THAT:- In this case, Ld. CIT(A) dismissed the appeal because assessee could not file its appeal electronically and appeal was dismissed as non-est and on merit appeal of the assessee was not heard. Assessee should have been given a chance to rectify his omission for filing physical appeal instead of e-appeal and Ld. CIT(A) should have decided the matter on merit instead of dismissing assessee's appeal in limine. We accept the plea of the assessee and assessee shall file e-appeal before the Ld. CIT(A) and intervening period of delay is condoned and Ld. CIT(A) is directed to decide assessee's appeal on merit. Appeal filed by the Assessee is allowed.

Disallowance of interest on borrowed capital - HELD THAT:- ICDS II issued on valuation of inventories (though relevant to the subsequent years) also supports the aforesaid claim of deduction of the assessee. As the interest bearing borrowed funds had been raised by the assessee for the purpose of its business, and used for the said purpose, therefore, the interest expenditure pertaining to such borrowed funds was rightly claimed by the assessee and allowed as a deduction by the CIT(A).No infirmity in the view taken by the CIT(A) in context of the aforesaid issue under consideration uphold his order to the said extent. The Ground of appeal No. 2 is dismissed. Disallowance of directors remuneration u/s 40A(2)(a) - HELD THAT:- Basis for gauging the excessiveness or unreasonableness of such expenditure incurred by the assessee in respect of r....... + More

Penalty u/s 271(1)(c) - exemption u/s 11 and 12 disallowed - benefit of section 11(1A) is not available to assessee because of investment in shares of Tata sons Ltd as per section 11(1) and investment in shares of Tata Sons Ltd is not held as Corpus fund - AO held that the assessee is hit by the provisions of section 13(1)(d)(i) and 13(1)(d)(iii) - Assessee argued that the penalty notice nowhere speaks about specific limb to levy the penalty because the particular charge was not tick off in the notice - HELD THAT:- It is not in dispute that the penalty u/s 271(c) of the Act is leviable on account of the concealment of particular of income and on account of furnishing the inaccurate particulars of income. Both have different connotations. In this regard, the Hon’ble Supreme Court has appreciated the distinction between both the limb ....... + More

Income accrued in India - Benefit of India-UK Tax Treaty - remunerations received by the assessee for rendering legal services - Whether assessee is having PE in India within the meaning of Article-5 of India - UK DTAA? - o that the income of the assessee is taxable under Article-15 of India - UK DTAA - HELD THAT:- Tribunal in a very categoric manner has held that the provisions of section -9 relating to ‘Fee for Technical Services’ does not apply to the case of assesse, hence, the assessee is entitled to the benefit of DTAA. The Revenue has not been able to place on record any contrary material. No material has been placed before us to show that the nature of transaction in the assessment year under appeal is different from the transactions in assessment year 2013-14. Respectfully following the decision of the Co-ordinate Ben....... + More

Disallowance of goods lost due to fire - addition invoking section 29 - assessee has claimed that the impugned loss of stock is revenue loss which occurred during the year and was thus ascertained and confirmed loss and therefore same should be allowed as a deduction - as per AO assessee stocks were insured against damages including damage by fire by the National insurance Co Ltd and therefore the loss incurred by the assessee on account of fire is recoverable under a contract of indemnity i.e. insurance, against the damage from insurance Co and the claim of the assessee has not been decided till date by the insurance Co. Therefore the loss claimed by the assessee is a contingent loss - HELD THAT:- Merely because the assessee has an insurance, it does not mean that assessee has not incurred the loss during the year. Moment the insurance C....... + More

Disallowance being the amount of exchange fluctuation loss provided at the year end on business advance received in foreign exchange - HELD THAT:- The Hon’ble Delhi High Court in the case of Taiko Chander Nagar Chemicals P.Ltd.[2007 (10) TMI 282 - DELHI HIGH COURT] has held that exchange fluctuation loss in respect of business advances received in the course of business on account of reinstatement of outstanding balance at the year end is allowable as business loss. Also see OIL & NATURAL GAS CORPORATION LTD. VERSUS COMMISSIONER OF INCOME TAX [2010 (3) TMI 81 - SUPREME COURT] and M/S WOODWARD GOVERNOR INDIA P. LTD. & M/S HONDA SIEL POWER PRODUCTS LTD. [2009 (4) TMI 4 - SUPREME COURT] Applying the said principle to the facts and circumstances of the case, we hold that the exchange fluctuation loss arising on account of the re....... + More

Defect in appeal - date of service of the order appealed against was not mentioned in Form 35 - CIT(A) dismissed the appeal of the assessee on the ground that Form 35 was verified on 28.12.2011 and the demand notice was served on the assessee on 03.01.2012 - HELD THAT:- Income tax proceeding being judicial proceeding, the CIT(A) is expected to dispose the appeal on merit rather than technicality. In this case, for the assessment year 2005-06, admittedly the assessment order was passed on 31.12.2010 and the appeal was filed on 28.01.2011. Therefore the appeal is filed within the time. Even if Form 35 was not filed in, in respect of the date of receipt of assessment order, this Tribunal is of the considered opinion that defect memo ought to have been issued so that the assessee might have rectified the defect. The very object of mentioning ....... + More

Disallowance u/s 14A - Tribunal deleting the disallowance as there was no earning of exempt income during the assessment year - Whether no exempt income received by assessee? - non recording of satisfaction - amendment to Rule 8D brought in Finance Act, 2016 with regard to the quantum of expenditure that could be disallowed - HELD THAT:- Identical substantial question of law was considered by this Court in the decision in the case of CIT Vs. Celebrity Fashion Ltd. [2020 (9) TMI 1022 - MADRAS HIGH COURT] to which, one of us (TSSJ) was a party, wherein it was held that in terms of Section 14A of the Act, only expenditure, which was proved to be incurred in relation to earning of tax free income, could be disallowed and such provision could not be extended to disallow expenditure, which was assumed to have been incurred for earning tax free ....... + More

Deduction u/s 35(2)(AB) - expenditure outside the in-house R & D facility - Whether AO has rightly held that clinical trial expenditure is not eligible for weighted R & D deduction u/s 35(2)(AB) and it will be eligible for weighted deduction only if the expenditure is incurred on an in-house R & D facility? - HELD THAT:- Tribunal has allowed the deduction in respect of expenses incurred by the assessee on scientific research on in-house research and development facility by placing reliance on the decision of the Gujarat High Court. It is pertinent to mention here that against the aforesaid decision, the revenue preferred special leave petition and CADILA HEALTHCARE LTD. [2015 (11) TMI 496 - SUPREME COURT] has remitted the matter to the High Court for consideration afresh along with other issues. Since the Tribunal has neither ....... + More

Assessment of income - inclusion of the share income of the minor from the firm which had closed its accounting year on 10.8.75 in the assessment of the assessee for the assessment year 1976-77 - Whether the amended provision which had come into effect from 1.10.75 will apply to an income which had accrued on 10.8.75 for the assessment to be made for the assessment year 1976-77? - HELD THAT:- As relying on SRI LOKNATH GOENKA, SMT. NARMADA DEVI [2019 (8) TMI 458 - PATNA HIGH COURT] Appellate Tribunal was not correct, in law, in upholding the inclusion of the share income of the minor from the firm M/s. Om Prakash & Co. for it accrued on 10.08.1975, in the assessment year 1976-77, and the amendment which came into effect only on 1.10.1975 was to apply only prospectively and not retrospectively.

Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Substantial Questions of Law framed for consideration on account of certain subsequent developments - HELD THAT:- As assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the assessee in the event the order to be passed by the Department under the Act is not in favour of the assessee. Accordingly, the Tax Case Appeal stands disposed of on the ground that the assessee has already filed a declaration and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at the earliest. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken o....... + More

Disallowance u/s 14A r.w.r. 8D - HELD THAT:- Appeal is disposed of by remitting the matter back to the Assessing Officer for deciding the issue regarding disallowance under Section 14A as relying on M/s. Marg Limited [2020 (10) TMI 102 - MADRAS HIGH COURT] wherein held that the disallowance under Rule 8D of the IT Rules read with Section 14A of the Act can never exceed the exempted income earned by the Assessee during the particular assessment year and further, without recording the satisfaction by the Assessing Authority that the apportionment of such disallowable expenditure made by the Assessee with respect to the exempted income is not acceptable for reasons to be assigned the Assessing Authority, he cannot resort to the computation method under Rule 8D.

Reopening of assessment u/s 147 - Deemed dividend addition 2(22)(e) - approval by the JCIT without expressing any satisfaction - HELD THAT:- A summary approval by the JCIT without expressing any satisfaction on presence of underlying materials showing escapement while exercising the functions under s.151 of the Act cannot be countenanced in law. This apart, a consolidated approval memo of multiple assessee without recording satisfaction qua each individual case raises serious doubt on plausibility of implicit satisfaction for each case as contemplated in Section 151 of the Act. A nondescript approval under S. 151 without requisite satisfaction is a nullity. The issuance of notice under S. 147 itself is thus void where the sanction is not obtained in terms of S. 151 of the Act. Hence, on this ground also, the notice under s.147 of the Act ....... + More

Unexplained cash deposits u/s 69A - unexplained money - addition made u/s 69A was levied at the rate of 60% in view of the provisions of section 115BBE - HELD THAT:- Assessment for assessment year 2017-2018 was completed u/s 144 prior to the date of filing of the return (assessment was completed on 25.09.2019). The assessee in the paper book has also filed Form 26AS for the assessment years 2015-2016, 2018-2019, etc. On perusal of Form 26AS for the above mentioned assessment years shows huge cash deposits and withdrawals.The assessment year 2018-2019 there are cash deposits of ₹ 49,94,230 and cash withdrawals of ₹ 60,54,406. There is some truth in assessee’s contention that cash deposits are attributable to agricultural / trading activities and entire cash deposits in the current account of the assessee cannot be treated....... + More

No mandatory notice u/s 143(2) issued by eligible ITO - ITO jurisdiction to frame the scrutiny assessment u/s 143(3) without issuing notice u/s 143(2) - assessee objected to the jurisdiction of ITO, Ward-3, Shillong to have issued the statutory notice wherein it was stated that the assessee society is in Tezu which is situated in the State of Arunachal Pradesh and ITO, Ward-2, Digboi has territorial jurisdiction u/s 124 - HELD THAT:- It is an admitted fact that the assessment was framed by the ITO, Ward-2, Digboi and that he has not issued notice u/s 143(2) of the Act which is discernible from the order sheet as well as from perusal of the assessment order - scrutiny assessment u/s 143(3) was framed without issuing notice u/s 143(2) by the ITO, Ward-2, Digboi. The legal issue raised before me is no longer res integra. As in Hotel Blue Moo....... + More

Validity of Summon Order - High Court refused to entertain the request that there is power to issue summons but the partner of the petitioner be exempted from personal appearance - HELD THAT:- The SLP need not be interfered with. - However, it will be open to the petitioner to request the concerned authority to defer the recording of statement of the petitioner until the lockdown period is over. SLP dismissed.

Carry forward of transitional credit - vires of Rule 117 of the CGST Rules, 2017 - no evidence of error of submission/filing of TRAN-1 by the petitioner - HELD THAT:- Sri C.B. Tripathi, learned special counsel for the respondent no.1 states on instruction of the Commissioner, Income Tax, Lucknow dated 19.11.2020 that time was extended under Rules 117 (1A) of UPGST Rules, firstly by order dated 17.09.2018, upto 31.01.2019, thereafter by order dated 31.01.2019, upto 31.03.2019 and lastly by order dated 07.02.2020, upto 31.03.2020. There is nothing on record to show that petitioner has ever attempted to file TRAN-1 during the extended period. There are no good reason to entertain the writ petition - writ petition is dismissed.

Violation of principles of Natural Justice - Grievance of the petitioner is that while raising the demand of tax vide summary of order dated 18.09.2020 vide Annexure P/2, the foundational show-cause notice/order No.12 dated 10.06.2020 qua financial year 2018-2019 and tax period April, 2018 to March, 2019, was never communicated to the petitioner who is an individual registered under GST Act - Rule 142 of Central Goods and Services Tax Act, 2017 - HELD THAT:- A bare perusal of the aforesaid provision reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue. The State in its reply has provided no material to show that show-cause notice/order No.12 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG, Shri Mody, fairly concedes that the ....... + More

Principles of Natural Justice - no prior opportunity of hearing was given to the petitioner - Rejection of Refund application of IGST - HELD THAT:- Since refund in similar facts and circumstances has been allowed for the period December, 2017 to March, 2018, this Court sets aside the impugned order and remands the matter to the respondent No.3 for fresh consideration/determination in accordance with law within six weeks. All the rights and contentions of the parties are left open. Petition allowed by way of remand.

Grant of Bail - creation of bogus firms in the name of various persons - vicarious liability - case of applicant is that he has been falsely implicated in this matter and has also been illegally arrested - HELD THAT:- It is a case where the allegation against the present applicant/accused is that he, being the mastermind behind establishing and registering bogus firms in the name of various persons, was also involved in the issuance of invoices without the actual movement of the goods. In this manner, such transactions were carried out to earn commission out of them. The investigation so far points out that such transactions have caused loss to the tune of ₹ 13.08 Crores to the Government Exchequer. The contention of the applicant that there is nothing on record to show that he had received or obtained any kind of benefit from the a....... + More

Permission for withdrawal of application - Attachment order - HELD THAT:- In the reference 4th cited, hearing notice was given to M/s. Savitri Ashirvaad Buildtech Limited. In the reference 5th cited, M/s. Savitri Ashirvaad Buildtech Limited, have informed through mail, that the Venture is over and they don’t need the ruling. Hence the dealer has withdrawn the advance Ruling Application. The application for advance ruling filed by the applicant is dismissed as withdrawn at the behest of the applicant.

Exigibility of GST - supply of goods or not - sale of applicant’s share (40%) of residential flats - revenue sharing basis - HELD THAT:- Schedule Il to the CGST Act 2017 specifies certain activities / transactions to be treated as supply of goods / services. Clause 5(b) of the said schedule stipulates that “Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly” shall be treated as supply of service except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation whichever is earlier. In the instant case the applicant stated that that their share of residential flats have been handed over by the developer after the issuanc....... + More

Profiteering - Section 171 of CGST Act and Chapter XV of the CGST Rules, specifically Rules 126, 127 and 133 of CGST Rules - HELD THAT:- Petitioner is directed to deposit the principal profiteered amount i.e. ₹ 58,43,170/- with Central Consumer Welfare Fund within three months. The interest amount as well as the penalty proceedings and further investigation with regard to other outlets are stayed till further orders. List the matter on 07th December, 2020.

Validity of Summon Order - seeking direction to Petitioner to tender his statement and adduce evidence through video conferencing, in relation to a summon issued under Section 70 of the Central Goods and Services Tax Act, 2017 - whether the current COVID-19 pandemic situation can ipso facto be cited as a ground to insist that the tendering of statement be done through video conferencing? - HELD THAT:- Concededly, the investigation is ongoing and the Respondent wants to unearth the role of the Petitioner in the alleged tax evasion by the Company. The previous conduct of the Petitioner, at the stage of inspection when the officers of the Respondents were visiting Bengaluru, demonstrates that the Petitioner consistently avoided recording his statement on one pretext or the other. Thus, having regard to the past noncooperative conduct of the ....... + More

Profiteering - levy of interest at the rate of 18% from the date from which the excess amount was collected by the Petitioner from the buyers till the date of its payment - vires of Rule 133(3)(b) of the CGST/HGST Rules - HELD THAT:- Keeping in view the orders passed by this Court in Phillips India Limited Vs. Union of India & Ors. [W.P.(C) No.3737/2020] [2020 (6) TMI 626 - DELHI HIGH COURT] as well as M/s Samsonite South Asia Pvt. Ltd. Vs. Union of India & Ors. [W.P.(C) No.4131/2020] [2020 (10) TMI 1031 - DELHI HIGH COURT] and M/s Patanjali Ayurved Ltd. Vs. Union of India & Ors. [W.P.(C) No.4375/2020] [2020 (7) TMI 614 - DELHI HIGH COURT], the interest amount directed to be paid by the petitioner as well as the penalty proceedings are stayed till further orders. List on 07th December, 2020.

Maintainability of appeal - ex parte order of assessment - principles of natural justice - HELD THAT:- It would be only more appropriate, as is also so submitted by Shri Gautam Kumar Kejriwal, learned counsel for the petitioner, that the petitioner approaches the appellate authority highlighting the issues raised before this Court, as also pointing out the errors apparent on the face of record, if any, enabling the authority to reconsider the petitioner’s case based on the material so placed. Shri Pawan Kumar, learned counsel appearing for the State/authority, states that petitioner failed to exercise his statutory right as envisaged under Section 62 of the Act, leaving no option with the authority to pass the order. On merits, we do not express any opinion and leave it to the wisdom of the appellate authority to consider all these ....... + More

Principles of Natural Justice - validity of Garnishee Notice - whether the Garnishee Notice issued by the 1st Respondent is in tune with the principles of natural justice? - HELD THAT:- As the Garnishee Notice came to be passed without hearing, the Writ Petition is allowed setting aside the impugned Garnishee Notice, issued by the 1st Respondent, however, leaving it open to the authorities to proceed in accordance with law. Petition closed.

Imposition of penalty under Section 122 of CGST Act - case of the Petitioner is that, he has paid total GST liability of ₹ 4,69,92,664/- for the period of February 2018 to December 2018 and filed GST DRC-03, and having accepted the GST liability, interest and late fees, as per the provisions of CGST Act, imposing penalty of ₹ 4,27,19,192/- under Section 122(1) of CGST Act, AP GST Act, is illegal - HELD THAT:- It is to be noted that, Section 122 of CGST Act which deals with “Penalty for certain offences” states that, “wherever there is a violation, a taxable person shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short co....... + More

Validity of SCN - Cancellation of GST registration - SCN was served upon the petitioner asking him to show cause as to why his registration would not be cancelled as the petitioner/taxpayer was found non-functioning/not existing at the principal place of business - It is the contention of the petitioner that the show cause notice was vague - HELD THAT:- It is true that no hearing was given to the petitioner. It is also true that the order of cancellation is not a speaking one. However, the petitioner received such an order on February 14, 2020 and he has moved this Court in August, 2020. There are no reason to invoke a high prerogative writ and allow the prayer of the petitioner to set aside the order of cancellation in view of the provisions of Sections 30 and 107. Section 30 of the GST Act provides that a party aggrieved by an order of ....... + More

Levy of interest - belated filing of GST returns - Section 50 of the CGST Act - HELD THAT:- On perusal of the reply dated 21.2.2020 to the notice dated 7.2.2020, it is suffice to direct respondent No.1 to consider the reply and all the relevant facts as narrated therein, affording opportunity of hearing to the petitioner. In case, the 1st respondent is of the opinion that compliance has not been made by the petitioner properly, appropriate reasoned order may be passed affording opportunity to the petitioner, within a period of one month from the date of communication of this order. Till then, adverse order, if any passed against the petitioner, shall not be given effect to. Petition disposed off.

Grant of retrospective registration with effect from 01.07.2017 for petitioner's Registration Certificate dated 07.06.2018 - TNGST Act - HELD THAT:- Whether at all the petitioner is entitled for a relief sought for in his representation, dated 14.09.2020 is concerned, it is for the fifth respondent to consider the same on merits and in accordance with law. The petitioner relied upon two decisions of the Hon'ble High Court of Kerala in his representation, which according to him, enables the fifth respondent to validate the petitioner's registration from 01.07.2017 itself. The grounds raised by the petitioner in his representation, will have to be considered by the respondents on merits and in accordance with law and in the light of the decisions referred to by the petitioner. No prejudice will be caused to the respondents if th....... + More

Principles of Natural Justice - Validity of assessment order - replies have not been considered by the respondents under the impugned assessment order - HELD THAT:- In the instant case, the objections raised by the petitioner through their various replies, in which they have reiterated that they are ready and willing to produce books of accounts, were not considered in the impugned assessment order. But the impugned assessment order only based on the alleged deposition made by the petitioner before the Inspecting Officials that they are not maintaining books of accounts without any independent assessment. This Court has also perused and examined the various replies sent by the petitioner and as seen from the said replies, there is no admission on the part of the petitioner that they were not maintaining books of accounts at the time when ....... + More

Detention of goods - validity of e-way bill expired at time of detention - option for extension of period of e-way bill - Validity of notices issued under Section 129(3) of the CGST Act -- HELD THAT:- The classification in the table under R.138(10) is essentially between ‘over dimensional cargo’ and ‘other cargo’. In both the categories of cases, the cargo can be transported either by road or through multimodal shipment in which at least one leg involves transport by ship. The number of days which would count towards the validity period of the e-way bill, for cargo other than over dimensional cargo, would vary depending upon whether the distance traversed is upto 100 km or more. While one day validity is given for distance traversed upto 100 km, an additional day is granted for every 100 kms or part thereof travers....... + More

Cancellation of registration under the GST regime - closure of business or transfer of business - Section 30 of the CGST Act - HELD THAT:- It is apparent from the sequence of events narrated in the writ petition that the original cancellation of registration, on the ground that there was a closure/discontinuance of business, was an erroneous one, in that the petitioner had erroneously chosen the said reason instead of the actual reason, which was the transfer of business to an another entity. This is not a case where the petitioner changed his mind subsequently, and sought to insert a new reason in place of the old one, for the communication produced by the petitioner as Ext.P2 would clearly suggest that steps were taken by the petitioner almost immediately after the receipt of the order of cancellation of registration to make the correct....... + More

Refund claim - Intermediary Services - Export of Services - vires of Section 168 of the CGST Act, 2017 - challenge primarily on the ground that no mandate can be provided for directing the lower quasi-judicial authority to treat the Circular / Instructions issued by the Board to be binding. HELD THAT:- Notice of motion for 08.09.2020.

Deadlocks/inordinate delays for clearance of import cargo. due to COVID-19 pandemic lockdown - the Learned Single Judge ordered that the payment of container detention charges or other penal charges by the petitioners for release of the cargo covered by Bills of Lading shall be provisional and subject to further orders in the writ petitions. - HELD THAT:- True, at the time of considering the interim relief, the Court is bound to consider whether, (1) there is prima facie case, (2) balance of convenience, and (3) likelihood of irreparable hardship. Writ court though not specifically adverted to the above, reading of the impugned order reflects the same. On the aspect of violation of Article 14 of the Constitution of India, that the earlier interim order in W.P. (C) No. 10177/2020, dated 25-5-2020 has not been followed, it could be deduced ....... + More

Absolute Confiscation - quantum of penalty - import of Adult Toy - prohibited goods or not - Obscene Item or not - HELD THAT:- The appraiser/AA has to give his justification how he has to come to conclusion that it was an adult toy. As per Notification No. 1/1964-Cus. only an article with respect to any obscenity is restricted. The imported item massager cannot be connected with any obscenity. As held by the Hon’ble Supreme Court in the case of AJAY GOSWAMI VERSUS UNION OF INDIA AND OTHERS [2006 (12) TMI 500 - SUPREME COURT] the definition of obscenity differs from culture to culture, between communities within a single culture and also individuals within those communities. Moreover, this is imported for personal use and a single piece. Without any evidence the impugned order has been passed. Therefore, the contention of the departm....... + More

EPCG Scheme - non-issuance of Occupation Certificate - Construction of a multistoried building for operating a hotel - the cost included the cost of imported goods against which customs duty was not paid, as the goods imported were against 50 EPCG licenses - HELD THAT:- Since an application is pending, I am not going into the merits of the case. The EPCG committee is requested to consider the application filed by the petitioner on 9th August, 2020 within four weeks from today. The committee is also requested to pass a reasoned order after giving opportunity of hearing, not only to the petitioner but also to the customs authority, if required. As the petitioner has already alienated with the goods, imported without payment of customs duty, the customs authority may proceed to encash the bank guarantee for realising the customs duty but suc....... + More

Direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods - polyester knitted fabrics - period 2013 to 2016 - HELD THAT:- Keeping in view the limited prayer made in the writ petition, the same is disposed of with a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely polyester knitted fabrics during the period 2013 to 2016 within a period of six weeks - Petition disposed off.

Reclaim of goods after surrender of rights in warehoused Goods (after import) u/s 23(3) - Due to increased customs duty, the plaintiffs could not take the delivery of the goods - Decree of mandatory injunction directing the defendants to deliver 58 bales, 76 bales and 61 bales respectively of the goods amenable to customs duty - defendants took the plea that the plaintiffs themselves have surrendered the goods in terms of Section 23(3) of the Customs Act vide letter dated 10-12-1985 and therefore, no cause for the plaintiffs to file the suit was made out - Section 23 of Customs Act - HELD THAT:- Learned Counsel for the respondents could not show any such document or evidence that they have availed of the remedy provided under the Customs Act. The Customs Act which being a special Act has provided remedial action against the orders of the ....... + More

Maintainability of appeal - non-deposit of pre-deposit amount - Principles of Natural Justice - grounds urged in the appeal is that the third respondent ought to have extended an opportunity to the petitioner to cross-examine the officers who allegedly conducted search and seizure proceedings - HELD THAT:- In the present case, the appeal is dismissed on the ground that the petitioner did not deposit 50% of the demand in terms of the order dated 2-2-2016. It must also be mentioned that the directors of the petitioner’s company also did not deposit 50% of the penalty imposed on them, and further it must also be mentioned that there is no dispute that none appeared for the petitioner on 18-10-2016 when the appeal was listed for orders on an application filed for recall of the order dated 2-2-2016. The CESTAT’s order is not an ord....... + More

Smuggling - gold chain - gold bangles - gold anklet - Reopening of adjudication proceedings - section 124 of Customs Act - HELD THAT:- There is no force and merit in the submission of the Learned Counsel for the petitioner. The reference to Section 124 of the Customs Act in not issuing any notice in writing for confiscation or imposition of the penalty cannot be agitated after the lapse of three years. Alleged non-adherence to the provisions of Section 124 by issuing a separate notice before imposition of penalty and confiscation, cannot be raised for the first time in the writ petition, that too after a gap of three years. However, on going through the adjudication order of Ext. P3, the petitioner suffered a statement which was not found to be sufficient and was served with Ext. P2 summons to appear and explain along with the documents r....... + More

Implementation of order passed by this Tribunal and for early hearing of the said application - restoration of CHA license not stayed - HELD THAT:- In view of the fact that operation of the order dated 21.11.2019 has not been stayed or vacated by the higher appellate forum, the Revenue has left with no alternative, but to implement the order of the Tribunal in true letter and spirit. However, since it is contended that the order dated 21.11.2019 has already been appealed against by Revenue, we direct that the Revenue should obtained the stay order from the Hon’ble Bombay High Court in staying operation of the order dated 21.11.2019, if any, or to implement the said order passed by the Tribunal on expiry of the period of one month. Registry is directed to list the matter for reporting compliance on 16.11.2020.

Classification of goods - consignment imported under SKD condition - Exemption for the purpose of assessment for countervailing duty - Import of components for manufacturing colour Doppler SSD-4000 Ultra Sound Scanners - HELD THAT:- When the goods are presented in SKD condition, Revenue does not have authority of law to separate different parts and components and classify them differently in view of Rule 2(a) of General Rules for Interpretation of the Customs Tariff. If Revenue wants to remove certain parts from the SKD package and classify differently, then Revenue has to establish that remaining parts, if assembled together have essential character of final product. Revenue has not brought forward any such evidence. Further, CBIC issued clarification which is reproduced in foregoing paragraph. The said clarification relies on Chapter No....... + More

Gross overvaluation to fraudulently avail export benefits - Petitioner placed in the Denied Entity List (DEL) - Availment of fraudulent Special MEIS benefits - misdeclaration and forgery of documents - HELD THAT:- Any refusal to grant, suspend or cancel any licence, certificate, scrip or any instrument bestowing financial or fiscal benefits, can only be “by an order in writing”. In fact, Section 9(4) expressly mandates that suspension or cancellation of any licence, certificate, scrip or any instrument bestowing financial or fiscal benefits can only be “for good and sufficient reasons”. The requirement of giving reasons cannot therefore, be dispensed with and is mandatory - Even otherwise, it is now firmly established that even an administrative decision having civil consequences must record reasons as a mandatory ....... + More

Permission for re-export of imported diamonds on paying the penalty and redemption fine - Import of rough diamonds without KP (Kimberly Process) certificate - challenge on the ground that there was only a procedural defect in the import carried out and there is now a certificate issued as required under Exhibit P5 Circular - HELD THAT:- Exhibit P10 is not a KP Certificate issued for the export of goods from UAE, which alone would validate its import into India. Exhibit P10 is a mere 'Technical Certificate' issued for sending back the goods to UAE, from which country the goods were sourced from. The certificate enables export, to carry out which the appellant would have to first get the goods released by paying the redemption fee and penalty since already the goods are confiscated. A reading of Exhibit P5, hence, makes it mandatory....... + More

Physical presence of the petitioner for enquiry - Detention of goods - permission to petitioners to have food and medicines if enquiry by the officers of Directorate of Revenue Intelligence Office (DRI) were to stretch for long duration - HELD THAT:- Food and medicines are essential requirements. Shri. Aravind has fairly submitted that petitioners may carry food and medicine. This petition is disposed of with following: (i) Petitioners shall appear on 17.11.2020 in DRI office for further enquiry; (ii) They shall be permitted to carry their own food and medicines; and (iii) Enquiry shall be conducted during the office hours and completed as expeditiously as possible.

Application for out of turn hearing of the appeal - HELD THAT:- Because of the unavoidable circumstances, the matter could not be listed for hearing as there was no sitting of Bench. In the meantime, the appellants have filed this Miscellaneous Application on 17.06.2020 for early hearing of the matter. When the appeal has already been listed on board for hearing, there was no occasion to file this Miscellaneous Application. Subsequently, in view of Public Notice No.1 of 2020 dated 30.06.2020, the appellants were required to file their application as per format as prescribed in Annexure-II. I find from the records that they have filed the application in Annexure-II on 20.08.2020. The Miscellaneous Application for out of turn hearing of the appeal is dismissed as infructuous.

Maintainability of appeal - time limitation - appellant submits that the period of limitation has been calculated from the date of issuance of the order which is 3rd October 2018 whereas the statutory provisions provided that the period of limitation should be calculated from the date of receipt of the order - HELD THAT:- If the date of receipt of the order is taken into consideration, it is observed that the appeal was filed within the statutory period of 60(sixty) days and there was no delay in filing the appeal - Since the learned Commissioner(Appeals) has not decided the appeal before him on merits, but dismissed the same as time barred, it would be appropriate to remand the matter to the learned Commissioner(Appeals) to decide the appeal on merits. It is also categorically mentioned that there is no delay in filing the appeal before the lower appellate authority, therefore, there is no occasion to visit the aspect of limitation. Appeal allowed by way of remand.

Levy of Light Dues Charges and Port Charges - applicant has made a grievance that respondent No.1 is levying “light dues charges’ for the entire one months’ period though the ship was delivered to the applicant on 11.11.2020 - HELD THAT:- All the contentions of the parties regarding the legality and justifiability of the quantum of charges claimed by the Port Trust can be considered while determining the entitlement of the parties to the amount to be deposited with the office of Sheriff of Mumbai. All the contentions are, thus, kept open for consideration. The applicant - M/s. NKD Maritime Limited shall deposit a sum of Rs. ₹ 1,58,59,737/- with the office of Sheriff of Mumbai by tomorrow, 19.11.2020 - matter be listed on 2nd December 2020.

Continuation of Suspension of Customs Broker License - Smuggling - foreign origin cigarettes - Regulation 19(2) of CBLR, 2013 - appellant has failed to verify the antecedent and functioning of the client by using reliable and independent sources - violation of provisions of Regulation 11(n) of CBLR, 2013 - cross-examination not allowed - Violation of principles of natural justice - HELD THAT:- The learned Commissioner has not allowed cross-examination at his level but depended on the enquiry report wherein the cross-examination of Mr. Maswood Ahmed but it was held that cross-examination of Shri Abid Ali could not be undertaken. We find that this is not the spirit of the order of this Bench. Instead of delegating the directions given by this Bench to the Enquiry Officer, the Commissioner should have himself allowed the cross-examination as....... + More

Continuation of suspension of the CB licence - HELD THAT:- Shri Babul Dey joined the Customs Broker firm in July 2018, but the Customs Broker did not get him duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs. It is alleged that M/s.M.K.Saha & Company has violated the provision of Regulation 10(B) of CBLR, 2018. In the present case, the licence of CB was suspended under CB Order No.12/2019 dated 18.2.19. However, prior to the suspension, a Customs Broker Circular No.08/2019 dated 8.2.19 was issued in connection with the issue under consideration. The suspension was ordered by the Customs Authority on the basis of investigation report dated 31.1.19 issued by the Directorate of Revenue Intelligence, Kolkata Zonal Unit with respect to one export consignment of M/s. Skivvies Textile wherein apparently....... + More

Smuggling - Smart Watches - Foreign origin goods - applicability of Section 123 of the Customs Act, 1962 - burden to prove - Confiscation of 5543 smart watches - levy of Redemption fine and penalty - HELD THAT:- Admittedly the items under seizure are having a watch module which is for displaying the time. In our view the essential character of the item under consideration is that of a watch and is bought and sold as a watch in the trade. Just because certain other functions are inscribed in the said device it will not essentially go beyond the meaning of word watch as used in section 123 - the burden to establish that the seized smart watches are covered by the expression “watch” used in the Section 123 of the Customs Act, 1962. Whether Appellants have discharged the necessary burden to establish that these smart watches have ....... + More

Revocation of Customs Broker licence - forfeiture of security deposit - imposition of penalty - allegation on the appellant is that their executive has broken the seal of the container without the permission of the proper officer and thereby violated various regulations of CBLR 2018 - HELD THAT:- The defense of the appellant from the very beginning is that they have submitted the explanation to the Assistant Commissioner of Import, SIIB, Nhava Sheva and as per that the Customs endorsed the Bill of Entry and thereafter job order was issued by the Custodian and the seal was cut by the Seal Cutter Shri Shantaaram after informing the Examining Officer. Further we find that the enquiry officer in spite of the fact that the appellant raised this objection, did not bother to examine the Seal Cutter Shri Shantaaram who allegedly cut the seal afte....... + More

Early hearing of the appeal - Application sought on the ground that after suspension of the license, the employees of the appellants are jobless and causing undue hardship to the appellant and their employees - HELD THAT:- The miscellaneous application for early hearing of the appeal is allowed. Appeal will be heard on 03.12.2020.

Restoration of the name of the Respondents Company in the register maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes that, if it is just and equitable to restore the name of the respondent- company in the Registrar of Companies, it may direct the RoC to restore the name in its Register - The appellant Income-tax hasbeen able to satisfy this Bench that they are the aggrieved party within the meaning of Sec.252(1) read with Section 252(3) of Companies Act, 2013 and great prejudice will be caused to Revenue and public at large, if the name of the respondent company is not restored back. The Appellant has filed its affidavit of service on 05.02.2020, whe....... + More

Approval of Scheme of Arrangement for the demerger - Section 230-232 of Companies Act - HELD THAT:- Direction for dispensation of various meetings issued - directions for issuance of various meetings issued - application disposed off.

Approval of scheme of amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- In compliance of Sub-Section(5) of Section 230 of the Act and Rule 8 of the Companies (CAA) Rules, 2016, all the applicant companies shall send notices under Sub-Section (3) of Section 230 read with Rule 6 of the Rules with a copy of the Scheme of Arrangement, the explanatory statement and the disclosures mentioned in Rule 6 to (a) the Central Government through the Regional Director, South Eastern Region; (b) the Registrar of Companies, Kerala and (c) the Income Tax Authorities immediately at any rate within a week from the date of receipt of this order. The said notices be sent either by Registered Post or by Speed Post or by Hand Delivery at the Offices of the authorities as required by Sub Rule (2) of Rule 8 of the Rules. The aforesaid author....... + More

Restoration of name of the company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act, 2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able to demonstrate that it is just to do so, can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserve to be restored. Application restored - appeal allowed.

Approval of Scheme of Amalgamation - section 230 and 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 - HELD THAT:- Perusal of the scheme shows that the accounting treatment is in conformity with the established accounting standards. In short, there is no apprehension that any of the creditors would lose or be prejudiced if the proposed scheme is sanctioned. The said Scheme of Amalgamation will not cast any additional burden on the stakeholders and also will not prejudicially affect the interests of any class of the creditors in any manner. The Appointed date of the said Scheme is 01st April, 2018 - Petitioner Companies have stated that the scheme Proposed does not fall within the ambit of sections 5 and 6 of the Competition Act, 2002. The scheme does not require any modification as....... + More

Transmission of shares - estoppel by conduct - Appellants are alleging that the respondents are putting pressure on the Appellants for transmission of 5000 equity shares erstwhile held by Mr. Mondal in the Appellant No.1 Company without complying with the Indian Laws Intestate Succession - HELD THAT:- It is very much clear that both the Appellants and the Respondents are known to each other for a long time and knows each other families also. It is not in dispute that the Appellant No.2 has purchased the share of California, US based Company on the same identity from the Respondents. It is also not in dispute that in the objections filed by the Appellant before the Tribunal, they have not raised the issue of mother as an inheritor. The Appellants (Respondent at Tribunal) have raised only the issue of production of probate and appropriate l....... + More

Permission to file written submissions - HELD THAT:- Issue notice of this application to the respondents. Mr. Rohit Sud, the learned counsel accepts notice for all the legal heirs of the second respondent-Mr. Ashwini Chopra except for Mrs. Sudarshan Chopra. Mr. Ekansh Mishra, the learned counsel accepts notice for respondents No. 1, 3, 4 & 6. The applicant's counsel shall collect the notices from the Registry and send the same by speed post immediately to all respondents attaching therewith copy of the application and the entire paper book and the copy of this order. List on 21.09.2020.

Liquidation proceedings - Scope of the term "Party" - Transfer the winding up petition pending to the National Company Law Tribunal - circumstances under which a winding up proceeding pending on the file of a High court could be transferred to the NCLT - at whose instance, such transfer could be ordered? - HELD THAT:- The transferability of a winding up proceeding, both under Rule 5 as well as under Rule 6, is directly linked to the service of the winding up petition on the respondent under Rule 26 of the Companies (Court) Rules, 1959. If the winding up petition has already been served on the respondent in terms of Rule 26 of the 1959 Rules, the proceedings are not liable to be transferred. But if service of the winding up petition on the respondent in terms of Rule 26 had not been completed, such winding up proceedings, whether....... + More

Transfer of Equity Shares - Section 56 of the Companies Act, 2013 - specific case of the Appellant is that in the ‘Share Transfer Form’ SH- 4 furnished by the Respondent, the distinctive number of the share was not mentioned, corresponding certificate numbers were not mentioned, witness signature and name was not found, the Transferee’s details was not mentioned - HELD THAT:- It is the version of the Respondent that the Appellants’ ‘Grounds of Appeal’ and the ‘Questions of Law’ are based on non-existent ‘Articles of Association’ dated 18.02.1992 which is a forged and fabricated document with a view to mislead this Tribunal in reversing the findings of the impugned order. For the fraudulent acts committed by the Company and its Directors an investigation is to be ordered and a dir....... + More

Reduction of capital - repayment of excess capital - sections 66 and 52 of the Companies Act, 2013, read with the National Company Law Tribunal (Procedure for Reduction of Share Capital of the Company) Rules, 2016, and the applicable provisions of the National Company Law Tribunal Rules, 2016 - HELD THAT:- Section 66 of the Companies Act, 2013, deals with reduction of share capital of a company limited by shares or guarantee, after applying to the Tribunal, and based on a special resolution passed by the board of directors in this regard. This section provides for reduction of share capital either through extinguishment or reduction of the liability on any of the shares of a company in respect of the share capital which is not paid-up, or on cancellation of any paid-up share capital which is lost or is unrepresented by available assets, o....... + More

Grant of Leave to proceed with the suit - HELD THAT:- To have smooth and proper trial of the suit in question, it will be in the fitness of the things that the appellant / plaintiff is allowed to have the trial of the suit filed by the plaintiff against the defendants at the Delhi High Court itself upon its restoration by Delhi High Court as leave to proceed with the suit has been granted by the Company Judge now, as required under Section 446 of the Companies Act, 1956 since the appellant / plaintiff has undertaken to reimburse the cost of the Official Liquidator, Madras to contest the suit at Delhi in view of the shortage of the funds of the Company in liquidation M/s.Rayalaseema Commodities Limited and has agreed to make the initial deposit of ₹ 3,00,000/- subject to the account of the same being furnished by the said Official Li....... + More

Sanction of Scheme of Amalgamation - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy. Since all the requisite statutory compliances have been fulfilled, Petition is made absolute in terms of prayer made in the petition. Hence ordered. The scheme, with the appointed date fixed as August 1, 2018 placed at page Nos. 196 to 211, annexure F to the company scheme petition is hereby sanctioned. It shall be binding on the petitioner and the companies involved in the scheme and all concerned including their respective shareholders, secured creditors, unsecured creditors/trade creditors and employees - application allowed.

Sanction of Amalgamation Scheme - sections 230 to 232 of the Companies Act, 2013 read with rule 15(1) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It has been stated by the Regional Director that, on a consideration of the materials on record, the scheme of amalgamation appears to be fair, reasonable and is not detrimental against the members or creditors or contrary to public policy and the same can be approved. In his report, the Regional Director, MCA has concluded that the scheme appears to be fair, reasonable and not detrimental against the members or creditors or contrary to public policy and the same can be approved. The scheme in question will enable consolidation of all companies indirectly and jointly held by the HMK group and RR group, and helps in streamlining operations, reducing ov....... + More

Waiver of the requirements for filing Company Petition - Oppression and Mismanagement - Section 241 read with Section 244 of Companies Act - removal of the First Director form the management of the company - HELD THAT:- It is undisputed that the Respondent was managing the affairs of the appellant No.1 as managing director as per Joint Venture Agreement dated 20.1.2020 and the same was not incorporated in the AoA of appellant No.1. The notice circulated on 6.5.2019 and resolution passed on 14.5.2019 also establishes that one of the Agenda items was to withdraw the rights, powers, privileges of Respondent as Managing Director. Therefore, it cannot be ignored that Respondent was Managing Director of the appellant No.1. It is not disputed that the Respondent is member of appellant No.1 and holding 0.04% shareholding. It is also not disputed ....... + More

Approval of Amalgamation scheme - Section 230 to 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules,2016 and National Company Law Tribunal Rules 2016 - dispensation with the convening, holding and conducting of various meetings - issuance of notices as per the provisions of Section 230(5) of the Companies Act 2013 and Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - whether the Tribunal has power to dispense with the meetings of the shareholders/secured/unsecured creditors of both the Companies? - HELD THAT:- In the present applications, it is stated that the Transferor Company is a direct wholly-owned subsidiary of the Transferee Company and in the proposed Scheme of Amalgamation, the entire assets and liabilities of the Transferor Company will be take....... + More

Redemption of Debentures - main contention of the Appellant is that NCLT did not specifically address to ‘the prayer for repayment’ but rather gave a direction to explore all possibilities of settlements of claims of Petitioners and granted six months’ time, which is ultra vires to Section 71(8) and Section 71(10) of the Companies Act, 2013 - Whether the provisions under Section 71(10) of the Companies Act 2013 was adhered to by NCLT while disposing of the Petition? HELD THAT:- It is significant to mention that Section 71(11) of the Companies Act, 2013 speaks of ‘Penalty for Default’. Section 71(12) provides ‘a contract with a Company to take up & pay for any debentures of the Company may be enforced by a decree of ‘Specific Performance’ ’. As a matter of fact, Section 73 of the NC....... + More

Enlargement of period of payments by granting 6 more months’ time to make the first tranche of payments and to make subsequent tranches payments with 6 months difference each - HELD THAT:- It is clear from the very language of the Office Memorandum that the same has been issued in the limited context of disruption of supply chains, and contractual breach occurring therefrom. The Memorandum of Settlement is undoubtedly neither a procurement contract nor any such class of contract where a 'disruption of the supply chains' would result in a breach of the contract between the parties. It is merely a settlement agreement under which the Respondents herein have withdrawn pending legal proceedings against the Applicants and the Applicants have undertaken the reciprocal obligation of purchasing the shares of the Company held by the ....... + More

Restoration of name of the company in the Register maintained by the Registrar of Companies, Mumbai - Section 252 (3) of the Companies Act, 1956 - HELD THAT:- It is observed that the Petitioner Company has Short term borrowings of ₹ 1,170, 034/-, has fixed Assets of ₹ 12,38,464/-, for the Financial Year 2017-2018 and 2016-2017 - The Company has Fixed Assets (Land) valued of ₹ 12,38,464/- in its Balance Sheet. The Company had taken on lease the premises at MAHAD MIDC, got NOC from MIDC for power supply and also obtained approval for water supply from MIDC as stated in pre-paras. The Company has also produced various approval letters from the authorities, Lease Deed with MIDC to satisfy the Bench that the Company is carrying on its business operations. The Bench is of the opinion that the Company is taking various steps to....... + More

Termination of Contract - Appellant claimed that it had taken orders for supply of KAMCO products from the farmers but KAMCO failed to supply the machinery and it suffered losses - HELD THAT:- Reasoning of CCI appears to be well founded. It appears to be a dispute between manufacturer and authorised dealer which is tried to be converted into a competition case. The CCI has already considered the table which is being relied on by the Learned Counsel for the Appellant and has come to the conclusion that there is no abusive conduct established. No dominance as such has been found. The Ld. CCI has rightly referred to the agreement which is at Page 49 of this Appeal, which includes termination clause - It appears to be a contractual dispute between the parties which is being tried to be converted into a competition case. We do not find that it is a case made out for interference under the Competition Act, 2002. Appeal dismissed.

Maintainability of petition - Oppression and Mismanagement - criteria under Section 244 of the Companies Act, 2013 fulfilled or not - Whether the Joint Petition by three members (Appellants) is maintainable? - HELD THAT:- Admittedly the total number of members of the Respondent No. 1 company are nine. Hence, even Appellant No. 1 being a member i.e. more than one-tenth of the total number of members can maintain the petition under Section 241 of the Act. However, there is no such averment in the petition. Therefore, in the absence of pleading, the petition is not maintainable on this ground. Whether written consent is required to be filed alongwith the Petition? - HELD THAT:- The requirements contained in Regulation 18 of Company Law Board Regulation, 1991 can hardly be said to be mandatory in the sense that non-compliance would ipso facto....... + More

Entertainment of claims made by creditors after approval of Resolution Plan - whether after approval of Resolution Plan by the Adjudicating Authority, the claims made by the creditors can be entertained? - HELD THAT:- Once the Resolution Plan is finalized and approved, it shall be binding upon all the stakeholders and nobody shall have the power to change it. Even the Adjudicating Authority will not have a binding say on the approval of the Resolution Plan or on the commercial wisdom of the COC. The dues and liability as mentioned in the Resolution Plan as on the commencement of the Corporate Insolvency Resolution Process (CIRP), which is the day on which the Plan is approved by the Adjudicating Authority, shall be binding on every stakeholder and the Resolution Applicant shall be bound to pay only those which are mentioned in the Resolut....... + More

Winding up of Company - whether the Company Court would retain jurisdiction to hear the winding up petition? - HELD THAT:- It is clear from the Judgment that the learned Judge was of the view that the Company Court retains jurisdiction over winding-up petitions which were filed before the IBC came into force. In that view of the matter, the Court held that the Official Liquidator acting as the Provisional Liquidator could retain the symbolic possession of the assets and properties of the Company (in liquidation). It was also decided that questions of title to the flats, etc. were declaratory in nature and could hence only be decided by this Court. The important part of the Judgment however is the point of time when this Court reasserts its jurisdiction for deciding the issues related to the Company (in liquidation). This Court is informed....... + More

Maintainability of petition - availability of alternate remedy of appeal provided under Section 61 of the I.B. Code - Whether notification issued under Section 4 of the MPID Act and consequent attachment of the property including the bank account of the corporate debtor can be challenged by approaching NCLT under Section 60(5) of the I.B. Code? HELD THAT:- Full Bench of this Court in the case between Vijay C. Pulijal vs. State of Maharashtra [2005 (9) TMI 303 - HIGH COURT OF BOMBAY] held that the provisions of MPID Act are ultravires for want of legislative competence of the State legislature. The Full Bench of this Court took a view that the MPID Act transgressed into the field reserved for Parliament. The Full Bench held that the subject matter covered by the MPID Act squarely falls within the ambit of section 58-A and 58-AA of the Comp....... + More

Direction to 2nd Respondent to release the machinery in possession with the 1st Respondent/Corporate Debtor and transfer the possession of the same to the Applicant - HELD THAT:- In the statement, in regard to payment for the security arrangements of the Corporate Debtor it is stated that even though three securities have been arranged to guard the Corporate Debtor premises to keep the machineries, the Resolution Professional has limited it into two securities charges and claimed the six months charges of ₹ 1,90,080. Since the applicant undertake to make payment of ₹ 75,000/- in addition to ₹ 38,414/- already paid by them, the Resolution Professional should accept that amount, as the Corporate Debtor property is still under the possession of the Resolution Professional, the Resolution Professional has also to bear a part....... + More

Permission to applicant/State of Kerala to use the Corporate Debtor Hospital, RIMS Hospital, Erattupetta as Covid Hospital for Covid patients with immediate effect - Section 33(1)(b) of IBC, 2016 - HELD THAT:- The request of the applicant District Collector seems to be reasonable in view of the pandemic condition in the State of Kerala, due to Covid-19. Hence this M.A is allowed with the following conditions: - I. A detailed inventorisation of the subject property be carried out in the presence of the officials of the Applicant, the representative of the Liquidator prior to handing over of the premises to the applicant. II. During the acquisition of the Corporate Debtor (Hospital)the applicant cannot change or make any permanent structure in the aforesaid premises. III. The subject property (Hospital) be taken over by the Applicant on &ls....... + More

Exclusion of lockdown period w.e.f. 25.03.2020 to 30.06.2020 from the CIRP period - Section 60(5) of the IBC Code, 2016 read with Regulation 40(C) of the IBBI (IRP for Corporate Persons) Regulations, 2016 and read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or ....... + More

Permission for withdrawal of Resolution Plan post CoC's approval - HELD THAT:- It is very interesting to note that the factors which Adjudicating Authority is now capable to consider for limited judicial view are not mentioned in Section 30(2). This is a significant departure in judicial approach whereas earlier it was generally held that the role of NCLT was limited to see that Resolution Plan confirms to the requirements of Section 30(2) on the assumption that both RP and CoC had already seen aspects mentioned therein and merits of the Commercial wisdom of CoC could not be interfered with The CoC must take into consideration interest of all stakeholders in the best possible manner and for that purpose, it should follow the principle of fair play and reasonableness while supervising CIRP and approving the Resolution Plan. Consequentl....... + More

Dissolution of the Corporate Debtor - Section 54 of the IBC - Whether the pendency of any Investigation on the Corporate Debtor creates a bar for passing on order of dissolution of a Company? HELD THAT:- When a company gets dissolved under Section 248, it will cease to operate except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Though the Legislature has specifically made such a provision when dissolution takes place by virtue of Section 248 of Companies Act 2013, such exception cannot be presumed to be available as a thumb rule in situations when dissolution takes place via other modes especially under the I & B Code, 2016, where no such provision is expressly available. It is evident that the pendency of an Investigation creates a bar fo....... + More

Liquidation order - no privity of contract - financial debt - Applicant Bank has claimed that it has got absolute right to file claim Petition before the Liquidator and the said claim is squarely falling within the purview of "financial debt" and alleged that the Liquidator has erroneously rejected the claim Petition on the ground that there is no privity of contract between 1st and 2nd Respondents - HELD THAT:- The Appellant Bank has filed its claim in relation to the dues pending from COGIL before the Liquidator of NOCL. However, COGIL had filed its claim before the Liquidator, which stood rejected and against the said order of rejection, no appeal seems to have been preferred by COGIL before this Tribunal. Since COGIL has filed its claim before the Liquidator of NOCL, it will not in any way entitle the Appellant Bank to make ....... + More

Exclusion of time period from time period for completion of CIRP of Corporate Debtor - extension of 120 days from 01.07.2020 to 28.10.2020 for completion of CIRP of Corporate Debtor - HELD THAT:- In this case, the CIRP period of 180 days has already been extended by another 90 days vide this Adjudicating Authority's order dated 05.11.2019 and by virtue of section 12 of IBC, 2016, a period another 60 days was extended vide order dated 11.02.2020. The period of 270 days + 60 days came to an end on 09.02.2020 and 09.04.2020 respectively. Now that the Applicant herein is seeking exclusion of period lost due to outbreak of Covid-19 pandemic. Considering the submissions, facts and circumstances of case, interest envisaged by the Prospective Resolution Applicant for resolution of Corporate Debtor and in view of the decision of CoC in its 17t....... + More

Approval of Resolution Plan - Directions to the Committee of Creditors (CoC) requiring the CoC to consider Final Resolution Plan - directions to amend the Request For Resolution Plan (RFRP) issued by the Resolution Professional - main contention of the learned counsel for the applicants is that certain clauses in the RFRP are in contravention of the provisions of the SARFAESI Act and the RBI Guidelines. HELD THAT:- The Resolution Plan was rejected on the ground that M/s. Prudent ARC will not invest in equity and will not become a shareholder of the Corporate Debtor. RFRP provides that in case of Consortium, all the parties in the Consortium to be jointly and severally liable for implementation of the Plan. This objection has been raised by the Resolution Professional from time to time. However, the Plan was not amended to include M/s. Pru....... + More

Exclusion of certain time from the CIRP period in view of the time lost in replacing the Interim Resolution Professional and also the lockdown imposed due to Pandemic Covid-19 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). The Insolvency and Bank....... + More

Restoration of name of a Company in the register of companies - requirement of pending Financial Statements and Annual Returns with the Registrar - HELD THAT:- It is to be remembered that Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 says that the documents required to be submitted, registered or recorded or any fact or information required or authorised to be registered under the Companies Act shall be submitted, filed, registered or recorded on payment of the fee or on payment of such additional fee as applicable An ‘Appeal’ can be filed by a ‘person’ aggrieved by the ‘Registrar of Companies’ ‘Order’ notifying the dissolution of the Company, within three years from the date of order of the ‘Registrar of Companies’ communicating the reasons thereto - In Law, t....... + More

Stay on Liquidation proceedings - validity of Liquidation Order - continuation of CIRP - bringing back the money belonging to the corporate debtor - HELD THAT:- An appeal against a liquidation order passed under Section 33 may be filed on the grounds of material irregularity or fraud committed in relation to liquidation order. We find no material irregularity or fraud committed in relation to impugned order - The I&B Code, 2016 is not meant for initiating proceedings for prevention of oppression and mismanagement but is armed with provisions under part -II Chapter - III for initiation of actions against wrong doers/illegal transactions etc. There are no reason to interfere with the liquidation order passed by the Adjudicating Authority dated 29.07.2020 - the order passed by the Adjudicating Authority is upheld. Appeal dismissed.

Recovery of amounts from Bank Guarantees - Whether respondent no. 1 is in order in invoking Bank Guarantees when O.M. dated 12.04.2017 (EXHIBIT A5), provides time period for Provisional Mega Projects, for furnishing Final Mega Certificates to the Tax authorities to 120 months, viz. by which validity is available upto 2021, for the applicant to avail benefit of exemption from payment of customs duty? - HELD THAT:- We agree with the contention of the applicant as regards the issue as the Corporate Debtor was given time to submit Final Mega Power Project Certificate within the period of 120 months and in the instant case the Corporate Debtor has imported machinery in the year 2011 and it enjoys benefit of exemption from payment of customs duty for 120 months till 2021. We therefore, have no hesitation in accepting the contention of the appli....... + More

Remuneration of Liquidator - Applicability of Regulation 4(2) and (3) of the Liquidation Process Regulations, 2016 or Regulation 39D? - HELD THAT:- The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh was of the view that Regulation 39D provides for fixation of the fees separately by the Committee of Creditors for the three periods given in Section 39D and the fees in the instant case was not governed by Section 39D as the order of liquidation came to be passed under Section 33(1) (a) of the ‘I&B Code’. Be that as it may, the order of liquidation has been passed and the Corporate Debtor is undergoing liquidation process. It is immaterial which provision of the ‘I&B Code’ squarely governs the passage of order of liquidation. The fact remains that the Committee of Creditors....... + More

Maintainability of application - sale of paratments - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor or not - provisional allotment of an under construction of apartments - Whether in view of the I&B Code (Amendment)Ordinance 2019/Amendment Act, 2020, the Application under Section 7 of the I&B Code by one allottee is not maintainable? - HELD THAT:- The provision of Section 7 of the I&B Code, as is obtained prior to the date of Amendment occupies the field as of now. Thus, we hold that there is no effect of the I&B Code, Amendment Ordinance 2019 which was replaced by the I&B Code Amendment Act, 2020, on the present Application under Section 7 of the I&B Code. Therefore, it is not required to be considered whether in the light of the aforesaid Amendment whether the Res....... + More

Implementation of the approved Resolution Plan - Resolution Plan was rejected on the ground that he could not provide for lump sum time bound payment within 30 days of the approval of its Resolution Plan - HELD THAT:- The Appellant has no locus to question the implementation of the approved Resolution Plan of the Successful Resolution Applicant. Admittedly, appeal preferred against approval of the Resolution Plan of the Successful Resolution Applicant stands dismissed by this Appellate Tribunal. Direction given in terms of the impugned order on the application filed under Section 60(5) of the ‘I&B Code’ to the Successful Resolution Applicant follows as a necessary corollary to the dismissal of appeal filed against approval of Resolution Plan of the Successful Resolution Applicant to implement the approved Resolution Plan o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - acknowledgment on the part of the Corporate Debtor in the form of revival letter extending the period of limitation which is said to have been overlooked by the Adjudicating Authority while passing the impugned order - HELD THAT:- In the application to Adjudicating Authority filed in prescribed format the date of default is recorded as 10th June, 2014 whereas the application under Section 7 came to filed on 19th September, 2018 i.e. more than four years after the default occurred. The time, for purposes of reckoning limitation in terms of Article 137 of the Limitation Act, would commence from the date of default i.e. 10th June, 2014 which would neither be shifted not extende....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - arrears of rent - Operational Debt or not - pre-existing dispute - HELD THAT:- The words and expressions used in IBC which have not been defined but which have been defined in the Acts mentioned above can be directly imported. However, the Consumer Protection Act, 2019 and Central Goods and Services Tax Act, 2017 do not appear to have been covered under the Section 3 (37) and thus definition of “Service” and “Activities” to be treated as supply of service cannot simply be lifted and applied in IBC. It is clear that the legislature was conscious regarding liabilities arising from lease but although for particular types of lease, as mentioned in above sub-clause (d), legislature made specific provision to eve....... + More

Money Laundering - proceeds of crime -reasons to believe - It is alleged that the appellant no.1 Mr. Bharat Yadav has acquired properties in his name as well as in the name of his family members from the proceeds of above mentioned crimes including the alleged crime of robbery, dacoity, extortion and offences relating to arms under Arms Act, 1959, since 1988 onwards. It is also alleged that appellant no.1 Mr. Bharat Yadav has acquired aforesaid immovable properties after 01.07.2005 (i.e. after PMLA came into force), from his criminal activities, in his name or in the name of his family members. HELD THAT:- The Ld. Adjudicating Authority has not examined whether the satisfaction of the Complainant regarding reasons to believe is in accordance with law - On perusal of the PAO, it is seen that the Deputy Director has only mention the verbati....... + More

Money Laundering - Provisional Attachment Orders - attachment of certain properties of the petitioners for a period of 180 days from the date of the said order - petitioners filed the present petition on 15.06.2020 claiming therein that as the period of 180 days from the date of the Provisional Attachment Orders had expired, in terms of Section 5(3) of the Act, the said order ceased to have effect and therefore, the Adjudicating Authority had become functus officio and the proceedings in the complaint cannot proceed - HELD THAT:- The submission of the learned counsel for the respondents that as the delay in proceedings before the Adjudicating Authority cannot be blamed on the respondents, the respondents must not be penalized and the time period should be extended, cannot be accepted. It is not a question of penalization of the respondent....... + More

Money Laundering - proceeds of crime - submission of Shri Venegaonkar is that the applicant has failed to discharge the burden and has failed to produce even prima facie material in support of his contention. Shri Venegaonkar specifically deny the submission of Shri Ponda that the applicant was not a member of COD of IFIN at any point of time - HELD THAT:- From the material placed by the respondent, it can be seen that the applicant was involved in the infrastructure projects and the documents from the Ministry of Corporate affairs rather corroborate the submission of the respondent. He was involved into various infrastructure projects and therefore, in various Special Purpose vehicles or various infrastructure Limited companies, his name feature as a Director. The submission of Mr.Ponda therefore thus require a mention, just for its reje....... + More

Release of attached properties - Attachment of immovable properties - continued attachment of the FDRs - concealment of proceeds of crime or not - HELD THAT:- The Tribunal in the present case, in its impugned order dated 26.07.2019, agreed with most of the contentions raised on behalf of Kamats and Alemaos and even concluded in para 78, that the properties attached in the matter are liable to be released 'in the light of the reasons stated in earlier paras'. However, instead of setting aside the attachment, the Tribunal issued a host of directions in para 79, perhaps not even contemplated under the PMLA, by simply observing that there is a need to strike a balance in these matters since the trial is pending before the Special Court - Once the Tribunal concluded that the attachment orders were liable to be set aside, it could not h....... + More

Release of Provisional Attachment of properties/funds - relief prayed proceeds on the premise that the petitioner was a young boy and a student of Purdue University, Indiana, United States of America and, was in no manner connected with the commission of the scheduled offence or in possession of proceeds of crime and therefore, the attachment of his properties was illegal - HELD THAT:- In terms of the directions passed by this Court vide order 17.08.2020, the Adjudicating Authority, under the provisions of Prevention of Money Laundering Act, 2002, has finally adjudicated the provisional attachment orders No.02/2020 dated 18.02.2020 and 06/2020 dated 30.06.2020, vide their orders dated 21.09.2020 and 25.09.2020, respectively - It is an admitted position that the said orders dated 21.09.2020 and 25.09.2020 respectively, rendered by the Adju....... + More

Disposal of representations dated 21.08.2018 by passing a reasonable and speaking order, within a reasonable time period that may be fixed by this Court - HELD THAT:- The interest of the petitioner is only private and if the same is a public interest, the locus will be tested in a different way. The term dual test is whether the petitioner is a person aggrieved, as admittedly, he is an advocate and had never traded with the NSE nor had suffered any loss on account of the alleged co-location service. The petitioner being a complete stranger, there is no cause of action for him to maintain a writ petition, much less, any cause of action that arose within the jurisdiction of this court to maintain a writ petition here. Therefore, on the ground of maintainability itself the petitioner has to be nonsuited. Admittedly, there were issues when co....... + More

Recording of the ECIR - it is contended that the recording of the ECIR is itself bad in law since the Directorate of Enforcement (‘ED’) has not followed the procedure prescribed under law, including the mandatory provisions of Chapter XII of the Cr.P.C. HELD THAT:- List on 14th October 2020.

Validity of provisional order of attachment - statutory appeal before the first respondent, along with the petition for condonation of delay - HELD THAT:- This Court directs the appellate Tribunal/Prevention of Money Laundering, New Delhi, to accord priority and give disposal to petition and the connected petitions, in accordance with law, as expeditiously as possible and not later than three months from the date of receipt of a copy of this order. Petition disposed off.

Money Laundering- proceeds of crime - It has been alleged that Sri Manoj Singh had acquired proceeds of crime and placed the said proceeds of crime in the form of fixed deposit and other deposits - HELD THAT:- In course of investigation by the Vigilance Bureau, it was detected that so far as the valuation of gold and diamonds are concerned, the jewellery was not physically taken to the Valuer, but instead the Valuer had given a back dated valuation report and in lieu thereof, he was given an amount of ₹ 1,26,042/-. Sri Ramesh Kumar Soni, the Valuer in his statement under Section 15 of the Prevention of Money Laundering Act has specifically stated about the valuation being made after the gold and diamonds were brought before him by the accused which is contrary to what has been stated by him before the Vigilance Bureau. In course of ....... + More

Provisional attachment order - assets in respect of which the said attachment order has been passed are certain fixed deposits - said fixed deposits are currently lying with the HDFC Bank - HELD THAT:- In the peculiar facts and circumstances of this case where the amount, if frozen or attached, would continue to remain under the custody of the ED, this Court deems it appropriate to direct the said amount of ₹ 42,85,32,698.63/- from the provisionally attached bank account to be transferred to the account of the NHB by the HDFC Bank. Remaining amounts provisional attachment order shall continue and the Petitioner would be free to agitate its pleas before the Adjudicating Authority under the PMLA. Payment to the NHB shall be a pro-tem measure in the peculiar facts and shall abide by the final orders of the Adjudicating Authority. If th....... + More

Provisional attachment order - It is alleged that the police without any justification and cause have implicated the petitioner in a frivolous case on the basis of a disclosure statement made by one Mushfiq Ahmad Lone in FIR No.254 /2009 for offences under Section 120, 120-B, 121, 121/A RPC and 11, 18, 20 and 40A of ULA(P) Act of Police Station, Saddar, Srinagar - HELD THAT:- It is clear that whosoever, directly or indirectly, attempts to indulge or knowingly assists or is knowingly part or is actually involved in any process or activity connected with the proceeds of crime etc. etc. is guilty of offence of money laundering. The expressions used in the provision are “directly” and “knowingly assists”. These expressions convey that it is not necessary that proceeds of crime should have been actually and directly con....... + More

Grant of Bail - fraudulent high value forex outward remittances/transactions exceeding ₹ 3500 crores, taken place in the current accounts - outward remittances made without making corresponding imports into the domestic tariff area and without disclosing the beneficial owners inside the country and outside the country and end-use of the proceeds of crime in the other country - HELD THAT:- The petitioner have committed very serious offence in nature and there are ample chances to tamper the evidences and hamper the witnesses. Now the respondent laid charge sheet and the same has been taken cognizance in C.C.No.26 of 2019 on the file of the Principal Session Judge, Chennai and it is pending. This Court already dismissed the bail petition on two occasions and this Court does not find any change of circumstances to consider the bail app....... + More

Grant of Order of Status Quo - provisional attachment order - Ad-interim stay of the operation of impugned order - Eviction notice - HELD THAT:- There is no dispute that the aforesaid appellants are either FIR or ECIR named accused and that there is no allegations against these appellants that the aforesaid amounts that have been paid to the builders are out of proceeds of crime and that it is not denied by the Respondent that the aforesaid amounts have not been paid by these appellants and that it is an admitted fact that the appellants are not physically residing in the aforesaid flats and the flats are under lock and key. Having due regard to the facts and circumstances of the case, justice would be served, at this stage, if the conditional order of status quo is passed with respect to the aforesaid properties. Both the parties are dir....... + More

Money Laundering - Release of petitioner from Jail - allegation of extortion - keeping in jail custody beyond the period the maximum sentence which could be awarded pertaining to alleged offence though he has been remanded in judicial custody by a judicial order passed by the Court of competent jurisdiction - judicial order of remand - valid order of remand beyond the period of maximum sentence could have been awarded to the accused (the petitioner) in view of the protection provided under Article 20 and 21 of the Constitution of India or not - period of custody in jail. Maintainability of application - availability of alternative remedy - HELD THAT:- There is no absolute bar to entertain the writ application in the event of availability of alternative remedy subject to the condition mentioned herein above. If the issue falls under the af....... + More

Permission for withdrawal of petition - Validity of provisional attachment order - Proceeds of crime - petitioner seeks to withdraw the writ petition today on the ground that the provisional order of attachment no longer remains in force by efflux of time under Section 5 of The Prevention of Money-Laundering Act, 2002 - HELD THAT:- his Court is of the view that under Section 5(1)(b) of the PMLA, an order of provisional attachment remains in force only for a period of 180 days from the date of the order passed by the Director with regard to the proceeds of crime which the concerned Director has reasons to believe are likely to be concealed, transferred or dealt with in a manner which may frustrate any proceedings relating to confiscation of such proceeds of crime under Chapter III of the PMLA - Section 8(3) deals with a situation where the....... + More

Money Laundering - illegal collection of money - Grant of Anticipatory Bail - corruption and criminal conspiracy in which the ACB/EOW raided few offices and residences - allegation that Applicant Anil Tuteja received an amount of ₹ 2,21,94,000 and Applicant Alok Shukla received an amount of ₹ 1,51,43,000 illegally during the period from 30.5.2014 to 18.2.2015 and 1.7.2014 to 18.2.2015, respectively - HELD THAT:- There is concurrent jurisdiction of the High Court and the Court of Session for entertaining an application preferred under Section 438 Cr.P.C. and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. From the speech of the then Finance Minister, it is also clear that the provisions of Section 24 of PMLA only apply after framing of a charge against the accused ....... + More

Contempt petition - release of freezed Bank accounts of petitioner - contention of petitioner is that despite order dated 14.11.2019 quashing the freezing of the bank account, respondent Bank had not permitted the operations of the bank account - HELD THAT:- There is no wilful default on part of the respondent bank in not permitting operation of the bank account for the period that they were seeking clarification from the Enforcement Directorate as well as the Income Tax Department. The bank seems to have acted only by way of an abundant caution in seeking a clarification from the Enforcement Directorate as well as from the Income Tax Department. The cautious approach of the bank seems justified in view of the fact that the Enforcement Directorate has passed a further provisional attachment order attaching the amount of ₹ 19,22,11,271/-, which was the credit balance in the subject account. Petition dismissed.

Grant of Regular bail - Money Laundering - siphoning of funds - the allegation is that the amount was given by RFL to entities which were, directly or indirectly, owned or controlled by the applicant, or in which the applicant otherwise had financial interest, including companies linked to RHC - it was held by High Court that this court is persuaded to the applicant to regular bail in the proceedings registered under sections 3/4 of the Prevention of Money Laundering Act 2002. HELD THAT:- Issue Notice - List for hearing in the next week.

Grant of Interim Bail/Parole - categorization by way of exclusion of UTPs lodged in the jails in Delhi as under trial prisoners qua the alleged commission of offences - allegations levelled against the petitioner herein through the alleged commission of economic offences inter alia punishable under the PMLA Act, 2002 as also qua an offence punishable under Section 409 of the Indian Penal Code, 1860 which is punishable with the imprisonment for life or that which it may extend to ten years and to a fine - HELD THAT:- The Hon’ble High Powered Committee whilst considering the representation of the applicant observed also to the effect that the submissions made in the representation, related to the applicant only, but, that the Committee, was not formed to look into merits or demerits of an individual case for being released on interim ....... + More

Grant of Bail - Transfer of Government funds into fake accounts - Money Laundering - siphoning of funds - allegation against the petitioner is of opening 22 bank accounts in his name using forged identification documents - HELD THAT:- The Court notes that the case involves defrauding the public exchequer and the petitioner has admitted his role by the statement under Section 50 of the Act. This Court would refrain from offering any comment as to what would be the likely sentence awarded to the petitioner, if convicted, as at best, today, it would be merely speculative. Since the alleged offence is not a crime simpliciter, the period of custody already undergone by the petitioner and comparatively low value of amount involved, at the current stage, would not aid the petitioner's quest for bail. The Court is not inclined to enlarge the ....... + More

Validity of Downgrading petitioner's bank loans' rating to 'IND BB+' from 'IND BBB - Covid-19 pandemic outbreak - Reserve Bank of India has announced moratorium for the period upto 31st May, 2020 vide Circular dated 27.03.2020 - objection regarding territorial jurisdiction - whether third respondent cannot be characterised as “State” within the meaning of Article 12 of the Constitution of India? - HELD THAT:- Even though the third respondent may be located in Mumbai, in as much as part of the cause of action arose within the territorial limits of this Court, this writ petition cannot be dismissed on the ground of lack of territorial jurisdiction. Likewise, reliance on the ouster clauses in the rating agreement is equally misplaced. As third respondent is a private body and not a “State” within t....... + More

Whether the Board obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014 - HELD THAT:- It is a settled position that the requirement of compliance with the principle of natural justice can vary in different situations and conditions. Even where situations where principles of natural justice require an opportunity of hearing, it does not in all circumstances mean a personal hearing. A “reasonable opportunity of being heard” to the applicant before deciding exemption application. Therefore whenever it is found necessary to provide for an opportunity, SEBI has expressly incorporated it in such provisions. No such stipulation is found in the Regulation at hand. Apprehension expressed by the S....... + More

Interpretation of Statute - Whether Section 14 and 238 of IBC 2016 have an overriding effect on the provision of Section 28 of SEBI Act? - HELD THAT:- IBC which is a complete code in itself was enacted in the year 2016 and the law makers after considering the various acts prevailing at that time have framed the IBC to have a faster resolution process at par with developed countries with the primary objective of maximisation of value of assets to all stake holders. The preamble of IBC clearly mentions that the objective of the Code is maximisation of value of assets, to promote entrepreneurship, availability of credit and balance the interest of all stake holders in a time bound manner, whereas the primary object of SEBI is to protect the interest of the investors in securities market and to promote the development to regulate the securiti....... + More

Credit Rating Rationales - factors required to be considered by ICRA while deciding the rating - praying for a decree of declaration, declaring the Credit Rating Rationales dated 24th April, 2020 and 30th April, 2020 passed by the defendant or any other similar credit rating rationale downgrading the plaintiff’s credit rating from BBB+ (stable outlook) to BBB (negative outlook) as null, void, unenforceable and ineffective - also seeks decree of mandatory injunction directing the defendant to withdraw the said credit rating rationales from the physical as well as electronic records of the defendant including on the world wide web - charge of Violation of rating methodologies or the CRA Regulations or the Master Circular - Whether the defendant-ICRA has a right to publish the rating despite being objected to by the plaintiff/JPL? HELD....... + More

Failure to close the trading window - provisions of Clause 4 of Minimum Standards for Code of Conduct to Regulate, Monitor and Report Trading by Insiders mentioned in Schedule B read with Regulation 9(1) of PIT Regulations, 2015 - As alleged that the acquisition of AIMIN by Ecap was a price sensitive information which had come into existence on January 25, 2017 upon signing of Term Sheet - HELD THAT:- Price movement of the scrip of EFSL at the relevant point of time. Corporate announcement was made on the platform of BSE at 18:56:48 hours on April 05, 2017 i.e. after the market had closed on the said day. The scrip of EFSL had closed at ₹ 167.90 on the said day. However, I note that the scrip had opened at ₹ 175.95 the next day. This shows that the price of the scrip of EFSL had registered a spike of 4.79% on April 06, 2017. E....... + More

Unpublished price sensitive information being shared on a messaging platform 'Whatsapp' - whether the appellant is entitled for inspection and for supply of all the documents in possession of the adjudicating authority including those documents upon which no reliance has been placed by the Adjudicating Officer ('AO') of the Securities and Exchange Board of India ('SEBI' )? - HELD THAT:- Concept of fairness and principles of natural justice are in-built in Rule 4 of the Rules of 1995 and that the AO is required to supply the documents relied upon while serving the show cause notice. This is essential for the person to file an efficacious reply in his defence. The contention that the appellant is entitled for copies of all the documents in possession of the AO which has not been relied upon at the preliminary stage w....... + More

Guilty of causing false media report causing the rise in the price of the scrip - temporary prohibitory order - WTM directing the present appellants to disgorge an amount of ₹ 22,69,461/-along with interest at the rate of 12% per annum from December 22, 2008 - HELD THAT:- Appellants submitted that there is a delay in the proceeding, the documents filed by the appellants themselves would show that before the WTM they were pressing time and again for more documents from the respondents before filing reply to the show cause notice. Even though a compact disk was supplied to them the demand continued which ultimately led to filing of reply belatedly. Though the practice of keeping temporary prohibitory order continuing for a long period cannot be accepted, it is to be noted that ultimately the said order is revoked. Therefore, the issue....... + More

Acquisition of the shares by promoters - increase in the collective shareholding of all the appellants - the promoters, from 29.42% to 61.10% which was more than threshold limit of 5% - no public announcement was made - violation of provisions of Regulation 3(2) read with Regulation 13(1) of the SAST Regulations, 2011 - HELD THAT:- There should be common objective of purchase of shares or voting rights amongst the members to make them persons acting in concert. In the present case, while two promoters had an objective to dispose of their shares, the appellant No. 1 Susheel Somani had an objective to acquire the shares. This itself would show that there was no common cause between the appellant No. 1 Susheel Somani and the two transferors. Therefore, though the promoter group holdings in the company remained constant, the same would be irr....... + More

Inordinate delay in the issuance of the show cause notice for violation of Section 12(A)(a), (b) and (c) read with Regulations 3(a),(b),(c) & (d) and 4(1), (4(2)(a) and (g) of PFUTP Regulations - delay of 7 years in issuing the show cause notice - HELD THAT:- There has been an inordinate delay in the issuance of the show cause notice. Even though there is no period of limitation prescribed in the Act and Regulations in the issuance of a show cause notice or for completion of the adjudication proceedings the authority is required to exercise its powers within a reasonable period as held recently in Adjudicating Officer, Securities and Exchange Board of India v. Bhavesh Pabari [2019 (3) TMI 197 - SUPREME COURT]. In the instant case, we are of the opinion that the power to adjudicate has not been exercised within a reasonable period and ....... + More

Collective Investment Schemes - show cause as to why the Yatra Art Fund should not register itself with SEBI in the prescribed corporate form, as otherwise the collective investment scheme carried out by the Trust would be illegal - SCN also mentioned that all amounts collected should be refunded within a period of 30 days from the said show cause notice - HELD THAT:- The statutory scheme is that, if a collective investment scheme, as defined, is to be floated by a person, it could only be done in the form of a collective investment management company and in no other form. This is the reason why Section 11AA uses the expression "company" in sub-Section (2) and not the word "person" (as the CIS Regulations of 1999 had come into force on 15-10-1999; Section 11AA being enacted and coming into force on 22-2-2000). Once the....... + More

Insider trading - circumstantial evidence as to whether a person is guilty of insider trading - HELD THAT:- Appellant had passed on the price sensitive information regarding the open offer to the Tippees. Such inference taken from the immediate and proximate facts and circumstances surrounding the events is reasonable and logical which any prudent man would arrive at such a conclusion. The Supreme Court in Kanhaiyalal Patel 2017 (9) TMI 1269 - SUPREME COURT held that an inferential conclusion from proved and admitted facts would be permissible and legally justified so long as the same is reasonable. In the light of the aforesaid, the decisions cited by the learned counsel for the appellant on the issue that a person cannot be held guilty only on the strength of proximity of relationship with the Tippee are distinguishable on facts and are....... + More

Orders for release of securities - learned senior counsel sought intervention of this Tribunal to stay such orders as well as to allow the appellant to dispose of the securities worth ₹ 21.62 crores and thereafter releasing the remaining securities given by Respondent No. 2 to the appellant - HELD THAT:- We pass the following interim directions - The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further on Friday, July 03, 2020. In the interim status quo shall be maintained....... + More

Withhold of money by SEBI - penalty for violation of Regulations 3 and 4 of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - During the pendency of the appeal, the Recovery Officer of SEBI recovered an amount - HELD THAT:- Once the order of the AO imposing a penalty was set aside, there was no justification for SEBI to withhold any amount which was recovered pursuant to the order of the AO. Such retention of the amount after the order of the AO has been set aside, is without any authority of law. The fact that no direction for refund of the amount was issued by the Tribunal is immaterial. Once the order has been set aside, there is no amount to be recovered and consequently any amount so recovered has to be refunded immediately. Respondent has a....... + More

Maintainability of the Writ Petition - whether IGRP of the First Respondent has jurisdiction to re-examine the complaint of the Third Respondent pursuant to the direction issued by the Second Respondent after having arrived at the conclusion that the admissible claim of the Third Respondent against the Petitioner was 'NIL' and relegated the parties to take further course of action under the Exchange Regulations in the earlier order dated 18.10.2016, which has attained finality having remained unchallenged in the manner recognized by law - HELD THAT:- There cannot be any doubt that the attempt to re-examine the complaint of the Third Respondent against the Petitioner by IGRP of the First Respondent without any specific provision to that effect in IGRM devised by the Second Respondent in Circular No. CIR/MRD/ICC/30/2013 dated 26.09........ + More

Reversal trades - manipulative and unfair trading - 5 Entities restrained from accessing or dealing in the securities market directly or indirectly for a period of 5 - 7 years - Further 11 entities, who have already undergone a debarment of more than 5 years from the date of the interim order have been directed to disgorge an amount of ₹ 3,05,99,174/- jointly and severally along with the 5 entities who have now been restrained along with interest @ 12% p.a. from December 17, 2012 till the date of payment - HELD THAT:- In a scheme of manipulative and unfair trading it is not necessary that every participant should be indulging in every type of trading violation or even in the same/similar magnitude. Once they are found to be part of a group trying to manipulate the volume or price of the scrip they became party to the violation. Hair....... + More

Liability of the Company and directors - repayment of the money collected through issuance of Secured Optionally Convertible Debentures - HELD THAT:- WTM relying on the provisions of sub section 2 of Section 73 of the Companies Act has observed that the liability of the Company and directors would remain until the whole of the subscription amount along with interest is refunded to the allottees. This being the position the appellant cannot escape from the liability of the repayment. In the case of Sayanti Sen [2019 (8) TMI 1441 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] this Tribunal has observed that WTM in the impugned order therein had given a categorical finding that one Shri Shib Narayan Das was responsible for the affairs of the company. In the present case the appellant during the relevant period being a promoter director of GIIPL ca....... + More

Period of limitation to initiate proceedings - proceedings were launched by respondent SEBI after a period seven years - Manipulation of scrips - Shares were either sold in off-market or through market to the connected entities in order to create a volume manipulation in the said scrips - HELD THAT:- Power to initiate the proceedings must be exercised by the authorities within a reasonable time. This would depend upon the facts and circumstances of the case, nature of the default / statute and prejudice caused to the noticee. In the present case, the appellant neither put a plea of prejudice before the AO nor before us. It was simply stated that since the proceedings were launched by respondent SEBI after a period seven years, the same should be quashed on the ground of delay. The record would show that all the documents concerning the de....... + More

Public offer of shares - no private placement as per assessee company as per WTM - offer to more than 49 persons - violation of the provisions of the Companies Act - HELD THAT:- Evidence indicates that an invitation was made by the management of the company to selected persons for subscription or purchase by less than fifty persons. Such persons receiving the offer or invitation was not calculated directly or indirectly to be availed of by other persons, and consequently such invitation or offer could not be treated as an offer or invitation to the public. The finding of the WTM on this aspect is absolutely perverse. The reasoning given that merely because three allottees had made the complaints indicates that the offer or invitation falls in the category of one which is calculated to result directly or indirectly in the shares, debenture....... + More

Money mobilization - Public issue - Whether the Company came out with the Offer of RPS [Redeemable Preference Share] as stated in the Interim Order? - whether the Offer of RPS is in violation of Section 56, Section 60 and Section 73 of Companies Act, 1956? - HELD THAT:- As neither the company nor the directors have disputed the same. Also perused the documents/information obtained from the 'MCA 21 Portal' and other documents available on records. It is noted, that OIL has issued and allotted RPS to 4,191 investors during the financial years 2011-12 and 2012-13 and raised a total amount of ₹ 5,46,48,000/- - number of allottees and funds mobilized has been collated from the information from Ministry of Corporate Affairs (MCA) Portal and the documents submitted with the complaint received by SEBI. Therefore, it is possible that....... + More

Non-compliance of summons issued by SEBI - whether the appellant has violated provisions of Section 11C(3) of the SEBI Act? - whether clause 43 of the Listing Agreement has been violated by not disclosing to the Stock Exchange the alleged variations between the projected utilization of funds and the actual utilization of funds raised through the preferential allotment? - HELD THAT:- Though the appellant may be charged with non-submission of full information the submission of the appellant that the management of the appellant was new etc. has to be given some weightage while imposing the penalty. Given this and the facts of the matter, we are of the view that the amount of penalty at the rate of ₹ 10 lakh on this violation is on the higher side particularly when the appellant did provide part of the information readily available with....... + More

Restrictions on dealing in foreign exchange - diversion of exported goods, non-realisation of export proceeds, non-clearance of imported bills and write off/ set off - HELD THAT:- Trend Setters Group of Companies had failed to submit Bill of Entry as evidence for actual import of the goods. Trend Setters Group of Companies did not realised the substantial portion of export proceeds and it is also established that except filing a Suit before a Sub-Court in Ernakulam, Kerala and writing to the RBI for write off/ set off, no other steps have been taken. In other words, no sufficient and visible efforts have been by/ on behalf of the Trend Setters Group of Companies to realise the export proceeds. Who was/were the person/persons responsible for the diversion of export goods / non-realisation of export proceeds and remittances of payment towar....... + More

Extension of the usance period of the Letter of Credit Facility sanctioned to the writ petitioners from 180 days to 270 days - distinction between the usance period of a Letter of Credit and the period of a Trade Credit - HELD THAT:- The argument that the 2018 Regulations brought about a change in policy regarding the usance period for credit does not hold water, since the said Regulations and the Master Direction on External Commercial Borrowings and Trade Credits dated July 1, 2015, updated up to October 6, 2015, relate to loans extended by overseas banks. The germane consideration in the present case is, rather, the Master Direction - Import of Goods and Services dated January 1, 2016 (updated lastly on April 1, 2019). Trade Credit Policy - Revised Framework formulated by the RBI on March 13, 2019 does not alter the position as far as ....... + More

Detention Orders at the pre-execution stage - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - HELD THAT:- Proposals for invoking the provisions of the COFEPOSA Act were mooted in the second week of October 2019 - overseas evidence was received from SPA Dubai in the first week of November 2019. The proposal to detain the petitioners was further analysed keeping in view the strong tendency to indulge in smuggling activities in future. The proposal for preventive detention of the petitioners was sent to the Detaining Authority on 02.01.2020. The proposal was placed before the Central Screening Committee on 13.01.2020, and the recommendations of the Central Screening Committee (CSC) were submitted to the Detaining Authority on 14.01.2020. The proposals were examined by the Detaining Authority....... + More

Seizure and attachment of the bank account of the petitioner's father - grievance of the petitioner before this Court is that the bank account mentioned in the writ petition is not allowed to be operated by the petitioner under the guise of investigating the matter under FEMA and no order of attachment was passed by the first respondent at any point of time in respect of the said bank account and therefore, the petitioner cannot be prevented from operating the bank account - HELD THAT:- Investigation under FEMA is pending and the investigation conducted so far reveals that the amount inter alia lying in the subject matter bank account appears to have been involved in violation of provisions of FEMA. Though such counter affidavit is filed, when a specific question is put to the leaned counsel for the first respondent by this Court as t....... + More

Proceeding against a Director of a company for contravention of provisions of FERA, 1973 - Non-executive Director responsibility for the conduct of business of the Company - notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to decide as to whether the adjudication proceedings as contemplated in Section 51 should be held against the Directors for contravention - HELD THAT:- The appellant had not submitted any reply to show cause notice dated 19.02.2001 which though was addressed to the Company and all Directors and the reply was sent only by the Company Secretary on 26.03.2001. The representation dated 29.10.2003 was the first representation submitted by the appellant before the adjudicating officer during course of personal hearing. What is said by a person who is called for personal hearing even though gi....... + More

Permission for Direct Investment in certain cases - direct investment in joint venture or wholly owned subsidiary outside India - application the petitioner seeks permission for remission of USD 54.99 Million on or before 31st July, 2020 - HELD THAT:- What prima facie appears is that based on a communication written by Directorate of Enforcement containing cryptic information the RBI/respondent has chosen to withhold permission to the petitioner. The discretion under clause 9 of the abovenoted Regulations has to be exercised by RBI the respondent based on cogent facts and materials and not at the mere directions of Directorate of Enforcement. It was for the respondent/RBI to exercise its discretion in the facts and circumstances of the case keeping in view its own permissions given and subsequent facts and events that may have taken place....... + More

Permission for Direct Investment in certain cases - on the saying of the concerned Enforcement Directorate, permission is being refused to the petitioner - HELD THAT:- In case an Indian party does not satisfy the eligibility norms of Regulation 6 then it may apply for RBI for approval. It is Regulation 6 which states that permission cannot be given in case the investigations are pending by the Law Enforcement agencies. Regulation 9 does not provide any such stipulation. Hence, prima facie the petitioner was correct in having approached RBI under Regulation 9. Counsel for RBI has pointed out to some inquiry initiated recently as mentioned in communication dated 14.08.2019 by Enforcement Directorate. The petitioner refutes this. We cannot help noticing that the corporate guarantee and the loans have prima facie been taken with the prior per....... + More

Organisation of a political nature as barred from receiving foreign contributions - Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 as violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India - Guidelines for declaration of an organisation to be an organisation of a political nature not being a political party are found in Rule 3 of the Rules - principal challenge of the Appellant-organisation to Section 5 (1) of the Act is on the ground that the terms ‘activity, ideology and programme’ are vague and have not been defined in the Act which result in conferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation contended that Section 5 (1) is violative ....... + More

Violation of provisions of Section 10(6) of the FEMA Act - Responsibility of Authorised person - goods had arrived in India, but the Company failed to submit Bill of Entry and did not take delivery of the goods - goods not released and as such kept in bonded warehouse - defence of the appellant that he could not be made responsible for the stated contravention. For, he became the Managing Director of the Company much later i.e. on 22.10.2001 - HELD THAT:- In the present case, the finding of fact is that the import of goods for which the foreign exchange was procured and remitted was not completed as the Bill of Entry remained to be submitted and the goods were kept in the bonded warehouse and the Company took no steps to clear the same. As a result, Section 10(6) of the FEMA Act is clearly attracted being a case of not using the procured ....... + More

Preventive detention - Powers in relation to absconding persons - COFEPOSA Act - delay in detaining the detenu - whether the detenu is absconding? - HELD THAT:- Ground is answered by the Learned Government Advocate to contend that the appropriate Government has not taken a decision as to whether the detenu is absconding or not. We are of the view that such an explanation by the State is unacceptable. After the issuance of an order of preventive detention the detenu requires to be arrested forthwith. If not, the procedure under Section 7 of the COFEPOSA Act requires to be complied with. They have failed to do so. The contention of the Learned Government Advocate runs contrary to the facts of the case. Therefore, such a contention cannot be accepted. The Hon’ble Supreme Court in the Judgment in the case of Manju Ramesh Nahar v. Union ....... + More

Offence under FERA - violation of provisions of Section 9(1)(b) of FERA - seizure of currency office premises - violation of provisions of FERA solely on the basis of the statement of Ashish Jain recorded on 4.10.1995? - penalty imposed - HELD THAT:- In the present case, neither the Adjudicating Authority (Deputy Director, Enforcement Directorate) nor the appellate authority (Special Director, Appeals) had applied their minds on the question whether the statement made by Ashish Jain was voluntary in view of its retraction on the very next day. In fact, the Tribunal had proceeded on the basis that it was accepted by the Appellate Authority (Special Director, Appeals) that the statement of Ashish Jain had no evidentiary value. This Court is of the view that the statement of Sh. Ashish Jain could not be relied upon as, first of all, it was r....... + More

Recovery of Refund of service tax - foreign agency commission rendered - services rendered prior to 18.04.2006 - Applicability of Section 66A in the Finance Act, 1994 - HELD THAT:- This Court in SOUTHERN SURFACE FINISHERS AND THRICHUR DISTRICT PADDY MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LIMITED VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, MUVATTUPUZHA AND THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THRISSUR [2018 (11) TMI 1208 - KERALA HIGH COURT] considered the Constitution Bench decision and found that the mistake if committed by the assessee, whether it be on law or facts; the remedy would be only under the statute. If that be so, the questions of law have to be answered in favour of the Revenue and against the assessee. But, however, we notice that the amounts have been refunded to the assessee as per the order of th....... + More

Works Contract Service - exemption under Sl. No. 12(a)/12A of Notification No. 25/2012-ST dated 20.06.2012 - erection, commissioning and installation of transmission lines for various Government companies / corporations - service tax on the reimbursement of amount towards crop compensation, right of way, from the service recipient, being incidental to the works contract executed - Difference of Opinion. HELD THAT:- In view of difference of opinion, the following question(s) arise for consideration. 1. Whether the view of Member (Judicial) is correct, holding that within the extended meaning of Article 243W, read with 12th Schedule of the Constitution, ‘Transmission and Distribution of Electricity’ is included; Or as held by learned Member (Technical) that ‘Transmission and Distribution of Electricity’ is not includ....... + More

Taxable Service or not - payment of remuneration in the nature and form of commission based on percentage of profit to whole time directors - reverse charge mechanism (RCM) - demand of service tax on fixed part as well as the variable pay - benefit of N/N. 30/2012-S.T., dated 20th June 2012 - It is the case of the Department that the said remuneration paid to the Directors would constitute ‘service’ liable to service tax in the hands of appellant assessee under reverse charge mechanism - HELD THAT:- Section 2(94) of Companies Act, 2013, duly defines ‘whole-time director’ to include a director in the whole-time employment of the company. A whole-time Director refers to a Director who has been in employment of the company on a full-time basis and is also entitled to receive remuneration. The certificate issued by the....... + More

CENVAT Credit - proper invoices or not - validity of invoices/ bills issued to their office which is unregistered - requirement of Central Excise Registration or ISD Registration for availing CENVAT credit on the invoices issued on a different address - rule 4A of the 1994 Rules read with rule 9 of the 2004 Rules. HELD THAT:- Once the requirement of rule 4A of the 1994 Rules and rule 9 of the 2004 Rules are satisfied, the benefit of CENVAT credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of CENVAT credit on the unregistered premises. The Commissioner has further held that the benefit of CENVAT credit for services received by the Appellant on the strength of invoices addressed to another unit is not admissible as the Appellant failed to take Central Registration or ISD Registration to ava....... + More

Valuation - inclusion of balance amount which is in the nature of Travelling Expenses and Boarding Expenses - reimbursable expenses or not - HELD THAT:- The demand is made on the amount that has been incurred by the appellant for travelling as well as lodging expenses. These are nothing but reimbursable expenses and the appellant has paid service on Audit Fee received as consideration for the service rendered - Demand do not sustain - appeal allowed - decided in favor of appellant.

Validity of appeal preferred by the respondent against an order of assessment under the Finance Act, 1994 - amnesty scheme in vogue - According to the petitioner, if he had been informed of the appeal having been preferred by the revenue, when the amnesty scheme was in vogue, he would have applied for the Amnesty scheme with a view to put the quietus to the matter and would not have had to contest the appeal preferred by the revenue - HELD THAT:- The petitioner has no statutory right to be informed of an appellate right exercised by the revenue, before a communication to that effect is sent to him by the appellate authority prior to the hearing of the appeal. The petitioner cannot also be seen as prejudiced in any manner merely because the intimation of the revenue appeal was received by him after the expiry of the amnesty scheme. His opt....... + More

Application for early hearing of the present appeal - recovery of portion of the service tax amounting to ₹ 50,00,000/-, which was already deposited by the appellant on 08/03/2013 itself - HELD THAT:- This is a fit case for granting early hearing and accordingly, the early hearing application is allowed - Registry is directed to list this case for final hearing on 09/11/2020.

CENVAT Credit - input services - service tax paid on the insurance premium paid to DICGC - service tax paid on the commission paid to the brokers for underwriting the government securities etc and for making investments in securities to maintain mandatory SLR as per the Banking Regulation Act, 1949 - levy of penalty. HELD THAT:- Matter referred to Hon’ble President for referring the matter to larger bench, for resolving the issues as follows: a. Whether the interpretation of the legal provisions contained in Section 65 and 66 of the Finance Act, 1994 made in the decision of the CESTAT, in case of South India Bank, satisfy to the test laid down by the five member bench of Hon’ble Supreme Court in case of Dilip Kumar and Co, referred above. b. Whether the CENVAT credit of the Service Tax paid on the services availed to fulfill a....... + More

Non-imposition of penalty u/s 76 of FA - Commercial or Industrial Construction Services - Department submits that Section 78 of Finance Act, 1984 was amended w.e.f. 10.05.2008 only to provide that penalty under Section 76 need not be imposed if penalty under Section 78 is imposed - Effect of amendment, retrospective or prospective? - Difference of Opinion. HELD THAT:- In view of the difference of opinion, the following questions arise for consideration by the learned 3rd Member:- (1) Whether penalty under Section 76 and 78 are prescribed for different type of violations and are mutually exclusive as held by Member (Judicial) OR that both the penalties can be imposed simultaneously as held by Member (Technical). (2) Whether the amendment brought in Section 78 by Finance Act, 2008 by addition of proviso (w.e.f. 10.5.2008) providing that whe....... + More

Nature of services - applicability of service tax or VAT - glass bottles and crate rentals - Supply of tangible goods service or not - Appellant has contended that the supply of glass bottles and crates amounted to deemed sale, which was liable to VAT/sales tax as the effective control and possession of the goods were transferred by the Appellant - extended period of limitation - demand of interest and penalty - HELD THAT:- The issue is settled by the judgment of the Hon’ble Andhra Pradesh High Court in the Writ Petitions No. 21115/2005, No. 856/2006 and No. 25588/2007 [2013 (1) TMI 1009 - ANDHRA PRADESH HIGH COURT], where it was held that such crate rentals would be liable to VAT/Sales tax on the ground that it amounted to deemed sale of crates inasmuch as there was transfer of right to use with effective control and possession of ....... + More

Tax Relief under the SVLDR Scheme - application for Tax Relief rejected on the ground that there is error in filling up Form No.SVLDRS-1 - HELD THAT:- In the present case there is no dispute about the petitioner being issued with Audit Note dated 04.04.2019 which mentions not only the duty demand but also the service tax recovered from the petitioner, and thus, there has been quantification of the duty demand in a sum of ₹ 23,86,861/- and acceptance of service tax recovered in ₹ 8,09,269/- during audit before the 30th day of June, 2019. There is also no dispute that the petitioner satisfies the other conditions of the SVLDR Scheme and is entitled to avail the tax relief. If these facts cannot be disputed and the conditions as contemplated under the SVLDR Scheme are satisfied, an accrued substantive right by way of Tax relief c....... + More

Short payment of Service Tax - Works Contract Services - Commercial of Industrial Building and Civil Structures and Erection Commissioning and Installation service - period is from October, 2004 to March, 2007 i.e. before 01.06.2007 - HELD THAT:- There is no dispute that the service provided by the appellant is otherwise specified under Works Contract Service. The criteria for qualification of Works Contract Service is that the service should be provided along with material. It is obvious that when the services on construction is provided along with the material the assessee needs to pay VAT or the Works Contract Tax. From the above contract it is seen that the appellant is required to provide the service along with material like Cement, Metal, Steel Reinforcement, Sand, Charcoal, Salt and Earting Material. Moreover, in respect of the Wor....... + More

Levy of Penalty u/s 78 of FA - Non-payment of service tax - Renting of Immovable Property Service - amnesty scheme - VCES scheme - HELD THAT:- The service tax has been duly paid and informed to the Department well before the issuance of Show Cause Notice Applicable interest has also been deposited subsequently as noted by the Learned Commissioner (Appeals) in the impugned order. The tax amount for the period in dispute has been deposited together with the previous period covered under the VCES scheme in installments as noted in the original order - There are no positive evidence has been brought on record in the entire proceedings that non-payment of tax was attributable to reasons to deliberately evade payment of tax. Moreover, the appellant is a PSU in the instant case. The Courts have consistently held that there is a presumption that PSU would not have intention to evade payment of duty or tax. Penalty do not sustain - appeal allowed - decided in favor of appellant.

Levy of Service Tax - Healthcare services/Business Support Services - revenue sharing - whether service tax is payable by the appellant for having allowed usage of the infrastructure provided by it to the contracted doctors? - HELD THAT:-This precise issue was considered by the Tribunal in connection with the earlier show cause notice to the appellant which involved the period both before and after July 1, 2012. The Tribunal held, after a careful consideration of the conditions prescribed in the agreement, that the arrangement was for joint benefit of both the parties with shared obligations, responsibilities and benefits. The Commissioner was not justified in confirming the demand of service tax under “business support service” - Appeal allowed - decided in favor of appellant.

Classification of services - Cleaning services or not - Appellant is engaged in the manufacture of lubricating oil/ grease and break oil and also in the refining of waste oil - Department formed a view that by incinerating the waste of other industries, the Appellant was rendering ‘cleaning activity’ services in terms of section 65(24b) of the Finance Act, which is taxable under section 65(105) (zzzd) of the Finance Act - HELD THAT:- A reading of the scope of cleaning activity under section 65(24b) of the Finance Act would indicate that the essence of the activity is to clean either an object which is present within the premises or the premises itself of a commercial building/factory/plant or machinery. These services are rendered by the service provider at the premises of the recipient, where the intended objects or premises ....... + More

Grant of Bail - Service Tax Evasion - The applicant/accused is also reported to be involved in multiple other economic offences. - requirement to deposit FDR as surety, as a pre-requisite for release on bail - case involving duty evasion of ₹ 22 crores - It is submitted that considering the antecedents of the applicant/accused, his chances of fleeing are very high and therefore the conditions imposed by the Ld. ACMM are not only just but mandatory for ensuring the presence of the accused during the course of trial - HELD THAT:- There is no provision under CrPC making it obligatory for the surety to deposit the FDRs to secure the release of the accused on bail. The surety merely owes a duty to ensure the presence of the accused during the course of trial failing which he shall be liable for payment of penalty u/s 446 CrPC. Towards th....... + More

Principles of Natural Justice - the request of the appellant for granting of cross-examination of the witnesses has been denied - HELD THAT:- There is no dispute that the witnesses of which cross-examination has been sought for by the appellant have given their statements during investigation and such statements were relied upon in the Show cause notice. Some of the statements given by the third parties. The appellant for making their effective defence wish to cross-examine the witnesses. The appellant should be given all the opportunity for making their defence including the cross- examination. Denial of cross- examination will amount to unfair justice in the case and also violation of principles of natural justice. When the noticee seeks for cross examination of witnesses, in the interest of justice and as mandated in section 9D of Cent....... + More

Classification of services - Maintenance and Repair service or otherwise - Charter hire of workover rigs - Extended period of limitation - HELD THAT:- The scope of work has been stated in Annexure - III appearing on page No. 85 of the appeal book, which inter alia states that, “contractor shall be required to start work over, and if required, complete the development / exploratory wells for ONGC by deploying its mobile work over unit at such locations within the operating area as may be identified by ONGC, and to such depth as are designated by ONGC to exploit natural hydrocarbon in the form of oil & gas”. Thereafter, in subsequent paragraph, it has been stated that other specified jobs shall also be carried out during the said work over operations, which are not limited to what has been expressly stated therein. The learn....... + More

Classification of services - site formation service or mining services - providing mobile drilling services to companies in the oil and gas industry - According to the Department, the appellant had rendered site formation service from April 1, 2006 upto May 31, 2007 - whether the appellant had rendered site formation service for the period April 1, 2006 to May 31, 2007, which is the period prior to June 1, 2007 when mining services became taxable? - Extended period of Limitation - HELD THAT:- It is clear from the definition contained in section 65 (97)(a) of the Finance Act that site formation includes drilling, boring and core extraction services for construction, geophysical, geological or similar purposes. It will also be pertinent to refer to the Circular dated July 27, 2005 that was issued by the Government of India in connection wit....... + More

Renting of immovable property service - Appellant had entered into agreements with films Distributors under which the theatrical exhibition rights for exhibition of the films were transferred to the Appellant, either for a specified number of shows and period or in perpetuity - Bundled services - period October 2008 to March 2014 - HELD THAT:- A perusal of the agreements between the Appellant and the Distributors would also make it abundantly clear that it is the Appellant who makes payment to the Distributors for grant of theatrical rights. This clearly indicates the flow of service and the consideration. Thus, as it is the Appellant who pays a fixed consideration to the Distributor, no service tax can be levied on the Appellant. This issue also came up for consideration before a Division Bench of the Tribunal in M/S. MOTI TALKIES VERSUS....... + More

Interest on refund claim - Section 11BB of the Central Excise Act, 1944 - interest denied on the finding that the adjudication of the claim attained finality only after dismissal of the proceedings before the High Court on 18-7-2005; whereas the Department had already paid refund amount to the appellant on 26-6-2005 - Circular No. 670/61/2002-CX.8, dated 1-10-2002 - HELD THAT:- The approval of the dictum of the Rajasthan High Court in JK. CEMENT WORKS VERSUS ASSTT. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2004 (2) TMI 78 - RAJASTHAN HIGH COURT], which directly deals with the claim of the appellant before this Court who had made application for refund on 30-12-1999 and, therefore, the statutory interest ought to commence after non-payment within three months from the date of application, being the starting point envisaged by Section 1....... + More

CENVAT Credit - LAM ( Low Ash Metallurgical) COKE - fake invoices without supply of goods - time limitation - main basis of denying the Cenvat credit to the appellants are the two letters received by the department, one from the Municipal Commissioner and the other from the Postal authorities - HELD THAT:- The best evidence would have been for departmental officers to physically visit the place and draw a panchnama after making enquiries from the locality. No such documentary evidence is there on record - The department has not denied that the dealer, M/s Dankuni Steel Ltd was registered with the jurisdictional Central Excise formation. As per extant departmental instructions the premises were required to be physically inspected within 5 days of granting registration. It has to be presumed that these instructions were duly followed. In th....... + More

Duplication of appeal filed - against one impugned order two appeals were filed - HELD THAT:- Only one appeal needs to be filed against impugned order therefore, the second appeal No. E/12975/2019 and Cross Objection No. E/CO/10114/2020 are dismissed as infructuous.

Refund claim - rejection of refund claim as being time-barred by computing the period upto the date of second presentation before the Tiruchirapalli Commissionerate - HELD THAT:- The refund claim has been first presented on 31-3-2010, the refund sanctioning authority has erred in computing the time-limit reckoning 16-8-2011 as the date of filing refund claim. The time-limit has to be computed from the date of clearance of the goods to the date of first presentation of the claim. The refund would be then well within time. The rejection of refund claim on the ground of being time-barred is set aside. The refund sanctioning authority is directed to look into the merits of the claim. The matter is remanded back to the refund sanctioning authority, who is directed to consider the claim on merits - Appeal allowed by way of remand.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Misdeclaration in SVLDRS-1 Form - rejection of benefit under the scheme on the ground that the amount of penalty had not been stated in the SVLDRS-1 form which makes it an incorrect declaration - HELD THAT:- The issue as to whether an inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form, it has been decided by this Court in its judgment [2020 (6) TMI 38 - GAUHATI HIGH COURT] where it was held that This writ petition also stands disposed of by requiring the petitioner to submit an application before the respondent authorities for correction to be made in the information provided in the Form SVLDRS-1 as regards the penalty imposed and upon such application being made, the respondent authorities would pass a reasoned speaking order thereon - Petition disposed off.

Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The matters are covered by the Litigation Policy of the Government being F.No.390/Misc./116/2017-JC dated 22.08.2019. Since the quantum of dispute in the present appeals is well within the amount as notified in the Litigation Policy before the Tribunal, it is deemed appropriate to dispose of the appeals in terms of litigation policy vide Board’s instruction being F.No.390/Misc./116/2017-JC dated 22.08.2019. The appeals are disposed off under the National Litigation Policy.

CENVAT credit - electricity - captive consumption - common Cenvat availed inputs and input services in the generation of electricity without maintenance of separate records - Rule 6(3)(i) of the CCR - extended period of limitation - interest - penalty - HELD THAT:- The self-same issue had fallen for consideration of the Hon’ble Allahabad High Court in the GULARIA CHINI MILLS AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2013 (7) TMI 159 - ALLAHABAD HIGH COURT] wherein the Hon’ble Court observed that electrical energy generated from Bagasse is not covered under Chapter 27 of the CETA and is therefore, non-excisable thereby not attracting the provisions of Rule 6 at all as observed from para 22, 26 & 32 thereof. The said decision has also been upheld by the Hon’ble Supreme Court in the UNION OF INDIA VERSUS DSCL SUGAR L....... + More

Grant of Anticipatory Bail - excise duty evasion case of ₹ 150 crores - It is submitted that investigation in the present case has already been concluded and the amount deposited by the applicant/accused is sought to be adjusted towards the final adjudicated amount - HELD THAT:- The applicant/accused is alleged to be involved in a duty evasion case of ₹ 150 crores. Even during the course of investigation, it is informed that he was not forthcoming on certain vital issues of investigation and he is giving evasive replies to the query of the investigating agency - Ld. SPP has informed the court that applicant accused is involved in the commission of an offence u/s 9 (b), (bb), (bbb) and (bbbb) of the Central Excise Act, 1944. It is further informed by Ld. counsel for department that applicant/accused is playing hide and seek and....... + More

Maintainability of appeal - non-compliance with the requirement of pre-deposit - section 35F of the Central Excise Act, 1944 - HELD THAT:- The learned Commissioner(Appeals) has not decided the case on merits, but has dismissed the appeal on the ground of non-compliance with the provisions of section 35F of the Central Excise Act, 1944. After filing appeal before the Tribunal, the appellant has deposited an amount of ₹ 10,00,000/-, which is sufficient to hear their appeal on merits. The appeal filed by the appellant is allowed by way of remand to learned Commissioner(Appeals) for deciding the case on merits, without insisting on any further pre-deposit - Appeal allowed by way of remand.

Application for early hearing of the appeal - application has been filed on the ground that the amount involved in the matter is quite substantial and also recurring in nature - HELD THAT:- Since we do not find any NOC available on the file from the earlier counsel, i.e. Shri Lakshmikumaran & Sridharan, filed uptil now, we are not in position to hold that this early hearing application has been properly constituted and hence should not be maintainable. The Registry is directed to consider listing the appeal after three weeks on or about 26.11.2020 for final hearing if all the NOCs and other documents are completed before that date - Matter to be listed on 26.11.2020 for completion of records and hearing.

Area Based Exemption - Northeastern/Backward region - substantial expansion or not - doctrine of promissory estoppel - benefit of N/N. 39/2001-CE dated 31-07-2001 - Irregular availment of CENVAT Credit - Bogus Sale - it is argued that in respect of North-eastern area, there is not even a single case of detection of fraudulent availment of benefit. HELD THAT:- The petition is dismissed as having become infructuous.

Clandestine Removal - 13683.05 MT of MS Billets - cogent, positive and concrete evidence to prove the said allegation, present or not - unaccounted purchase of various raw materials - reliability of third party documents - HELD THAT:- It is found from the show cause notice, that the allegation itself was that ‘in the specific question set out before him as to how he would disprove the facts of such clandestine clearance of their finished goods side by side their authorised clearance, whereas both of which have candidly confessed by M/s SPRML. Shri Mahapatra miserably failed to disprove the same whereby it led to the natural conclusion of conscious and organized modus operandi to evade legitimate Govt revenue in the guise of transaction that they have pretended to project themselves in clearing only authorised clearance of goods with....... + More

SSI Exemption - clandestine removal - manufacture of MCBs (Miniature Circuit Breaker) - use of Brand name of others - demand of duty by the Department is primarily worked out on the basis of a rough register (RUD-26), which was recovered from the factory, alleged to be showing movement of the goods i.e. removal of finished goods and receipt of raw/packing materials - retraction of statements - SCN issued about 20 days before the end of 5 years from the date of search - HELD THAT:- It is evident on the face of the record that the show cause notice was issued by way of wide guess work wherein duty demand of ₹ 1.22 crores was made approximately. Further, the Revenue in the proceeding before the Settlement Commissioner itself revised the demand at ₹ 49,50,711/-, thereafter in the adjudication proceedings, the demand was further re....... + More

CENVAT Credit - input services used for the Repair and Maintenance Service, etc of wind mills located far away from the factory - applicability of Rule 6(1) of Cenvat Credit Rules, 2004 - HELD THAT:- The explanation inserted to Notification No. 6/2015- CE (NT) dated 01.03.2015 come in to play if the appellant sold the electricity generated the appellant’s counsel has confirmed that they never sold electricity generated from the wind mill - In the present case, appellant have never sold any electricity generated from the wind mill to anybody and , therefore, they are not hit by the mischief Rule 6(1) of CENVAT Credit Rules, 2004. Appeal allowed - decided in favor of appellant.

CENVAT credit - input services - gardening services - appellants are engaged in manufacturing of gear motors - denial on account of nexus - HELD THAT:- The compliance of various environment related laws and factories act mandate clean environment in factory. Thus, the said service becomes essential for functioning of the factory. Credit allowed - appeal allowed - decided in favor of appellant.

CENVAT Credit - input - input services - Cement, TMT Bar, Beam, Angle, Channels & Joist etc. - inward transportation services - HELD THAT:- The Ld. Adjudicating authority had confirmed the demand of recovery of Cenvat credit on items such as Cement, TMT Bar, Beam, Angle, Channels & Joist by relying on the judgment of the Larger bench of the Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)],. However, the said judgment, as rightly pointed by the Ld. CA has been quashed by the Hon’ble High Court of Chattisgarh. Also, the Hon’ble Calcutta High Court had in the case of SURYA ALLOY INDUSTRIES LTD. VERSUS UNION OF INDIA [2014 (9) TMI 406 - CALCUTTA HIGH COURT] had disapproved the judgment of the Larger Bench. Thus, the Cenvat credit of the items along with Service tax credit o....... + More

Application for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Registry is directed to list the appeal for regular hearing on 28.10.2020. The Misc. Application for withdrawal of appeal is dismissed as infructuous.

Reversal of CENVAT Credit - common inputs used for taxable as well as exempt goods - non-maintenance of separate records - Ammonia - intermediate goods/captive consumption - Sl.No.86 of Notification No.12/2012 - period of dispute is April, 2015 to Jan. 2016 and Feb., 2016 to March, 2016 - Extended period of Limitation - HELD THAT:- Evidently, when the appellant clears part of Ammonia being Surplus, on payment of duty, admittedly, the final product being cleared is Ammonia. Therefore, Ammonia becomes the dutiable goods manufactured by the appellant. Majority of the Ammonia so produced, however, is used as an intermediate product and consumed for the manufacture of Urea. Thus, the final product of the appellant is Urea and SSP (exempt). Thus, the captively consumed Ammonia cannot be treated as exempted final product by any stretch of imagin....... + More

Clandestine manufacture and removal - MS Ingots - Excess consumption of electricity - third party evidences - corroborative evidences or not - demand based on assumption and preseumption - demand of Central Excise duty along with imposition of Personal Penalty - xtended period of limitation - HELD THAT:- It is found that the demand has been confirmed only on the basis of the unsubstantiated evidence being the private records of the two brokers viz. M/s.Monu Steels and Kailash Traders and the statement of their proprietors. Further, it is found that the author of private records of M/s. Monu Steels - Mr. Bal Mukund was never examined by the Revenue. Further, M/s. S.K. Pansari during his cross examination has admitted that the said records were maintained under his instructions by Shri Bal Mukund Pansari. Further, Revenue have failed to fin....... + More

Cross-examination of witnesses denied - violation of principle of natural justice - Section 129A (i) of the Customs Act, 1962 - HELD THAT:- To the earlier proceedings when the matter was remanded vide order dated 19.09.2014, this Tribunal has directed the adjudicating authority to consider the plea for cross examination of deponents by the adjudicating authority. By going through the impugned order, the cross examination of the persons has been rejected without assigning any reasons, therefore, the arguments made by the Ld. AR are futile as the impugned order for rejection of cross examination is not a speaking order. The way of working of the adjudicating authority cannot be appreciated in these terms - There are no merit in rejecting the request of cross examination without assigning any reasons. The adjudicating authority is directed t....... + More

Maintainability of petition - availability of alternate remedy of appeal - Redetermination of tax liability of petitioner - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. This Court does not express any view on the correctness or otherwise on the merits of the controversy involved in the matter- Petition dismissed.

Reversal of ITC - reopening of assessment - Payment of the differential amount of tax due and penalty - HELD THAT:- Similar issue decided in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] where it was held that In the instant case, there is no challenge to the statutory provisions and the complaint of all the dealer is largely on the procedure adopted by the respective Assessing Officers. The Principal Secretary and Commissioner of Commercial Taxes was conscious of the problems faced by the dealers as complaints were received which had lead to issuance of a circular as early as on 01.04.2015. The concerned assessing officer shall issue fresh show cause notice with all required details in respect of levy of tax for mismatch invoices and the Petitioner shall be entitled to submit its explanation within the prescribed time - impugned order set aside - petition allowed.

Direction to prevent the official Respondents herein from lowering their seniority - Respondent was directly recruited as a Group-II Officer in the post of Assistant Commercial Tax Officer (ACTO)[now re-designated as Deputy Commercial Tax Officer(DCTO)], which is the entry level post in the Subordinate Services of the Commercial Taxes Department, and were in the post of Joint Commissioners/Deputy Commissioners when the writ petitions were filed - HELD THAT:- Division Bench set out the four principles that were adopted by the Division Bench of this Court in W.P. 12786 of 1975 and affirmed by the Hon'ble Supreme Court in paragraph 4 thereof. In addition, in paragraph 5, the Division Bench of this Court referred to and extracted an earlier order based on the statement of the learned Advocate General. The said extract refers to the statem....... + More

Validity of impugned notice of default assessment of tax and interest and the impugned notice of default assessment of penalty - Section 137 of the Delhi Land Reform Act, 1954 - assessment years 2012-13, 2014-15, 2015-16 and 2016-17 - DVAT Act - HELD THAT:- Since the demands and penalties are the basis on which the impugned writ of demand dated 29th September, 2020 has been issued, this Court is of the view that petitioner must challenge the demands and penalties in accordance with the statutory mechanism. At this stage, Mr. Rajesh Mahna, learned counsel for the petitioner states that petitioner shall withdraw the present writ petition and challenge the demands and penalties in accordance with the DVAT Act. The statement made by Mr. Rajesh Mahna is accepted by this Court and the petitioner is held bound by the same. To facilitate the filing of the said proceedings, the writ of demand dated 29th September, 2020 is stayed for a period of six weeks.

Violation of principles of natural justice - Validity of assessment order - purchase omission committed by the petitioner - sales suppression - mismatch between the sales and purchases - TNVAT Act - HELD THAT:- Even though the petitioner has raised all the aforementioned contentions in the reply dated 07.03.2018 to the pre revision notice, dated 07.02.2018, the respondent under the impugned assessment order has not considered the same, but has passed the assessment order only based on the alleged sworn statements signed by the petitioner at the time of inspection by their Enforcement Wing Officials at the place of business of the petitioner. As seen from the impugned assessment order, no personal hearing was afforded to the petitioner before passing of the impugned assessment order. This Court is of the considered view that principles of ....... + More

Validity of pre-assessment notices - alleged mismatch between the details contained in the annexures to the petitioners' returns - HELD THAT:- These Writ Petitions are pre-mature. It is true that the Officer has called upon the petitioner/assessee to appear and submit such details as may be available with it to substantiate the alleged mismatch between the details contained in the annexures to the petitioners' returns vis-a-vis the details contained in the annexures to the returns filed by the supplying/purchasing party dealers. This Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] has held that cases of mismatch should be addressed in a scientific manner and has also directed the setting up of a central mechanism to facilitate sharing of data inter se as....... + More

Validity of assessment order - petitioner contends that it had paid VAT on Mess charges received towards supply of food to students and staff in the school premises of the said society in terms of the Act and also paid service tax on rent received towards Infra Lease rented by it in terms of the Finance Act, 1994 - HELD THAT:- The 1st respondent, being a quasi-judicial authority, is bound to assign reasons in support of its decision, and cannot simply reject the objections of petitioner to the levy proposed by him on these two items by merely saying that the explanation of petitioner is not ‘satisfactory’ - The 1st respondent is obligated to supply reasons for his conclusion and failure to do so amounts to violation of principles of natural justice. The impugned Assessment Order No.65175 dt.01.10.2020 passed by the 1st respond....... + More

Principles of natural justice - Validity of Assessment Order - no personal hearing afforded to the petitioner prior to completion of assessment - HELD THAT:- The petitioner has not been afforded an opportunity of personal hearing prior to completion of assessment, the impugned order of assessment is set aside. The petitioner will appear before the respondent officer on Thursday, the 26th of November, 2020 at 10.30 a.m. without awaiting any further notice along with yet another copy of the documents relied upon by it in regard to its claim of ITC. Any material in relation to third party details obtained from the Departmental website and proposed to be relied upon by the authority shall be made available to the petitioner prior to completion of assessment. After consideration of the same and after hearing the petitioner in person, an order of assessment shall be passed de novo within a period of six (6) weeks thereafter. Petition disposed off.

Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed, when a mismatch occurs - Demand of Differential amount alongwith interest and penalty - HELD THAT:- A batch of Writ Petitions filed by similarly placed persons on this aspect of the matter came up for consideration before this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] where it was held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed order....... + More

Principles of Natural Justice - sufficient opportunity to show cause against the re-assessment not provided - levy of tax on interstate stock transfer and sales made locally in other States, which cannot be subjected to levy of tax in the State of Karnataka - levy of tax on subsidy received by the petitioner from the Central Government - Nutrients Based Subsidy Scheme (NBS Scheme) - HELD THAT:- The essential premise for the petitioner’s case, apart from the question whether there could be levy of tax on subsidy granted to the petitioner based on the aforesaid two schemes, is whether there could be a levy on interstate stock transfer and sales made locally in other States. This question incontrovertibly has not been examined and it would be imperative for the authorities to consider the same as it relates to the very jurisdiction to ....... + More

Settlement of arrears outstanding - KGST Act - applicability of amnesty scheme - petitioner contends that the amnesty scheme is separately applicable to the various statutes mentioned therein and the petitioner cannot be compelled to opt for the amnesty under enactments other than the one he has chosen for settlement under the scheme - HELD THAT:- The statutory provision which deals with the amnesty scheme makes it applicable to outstanding dues under various statutes such as the Kerala Value Added Tax Act, Central Sales Tax Act, Tax on luxuries Act, Kerala Surcharges Act, Kerala Agricultural Income Tax Act and the Kerala General Sales Tax Act. A perusal of the scheme, as also the circular relied on by the respondent, would also indicate that arrears under the various enactments are separately dealt with. For instance, in the case of dues....... + More

Refund of amount deposited as pre-deposit - Proceedings under Delhi Sales Tax Act, 1975 - HELD THAT:- This petitioner preferred the refund application which is at Annexure P-5 to the memo of this writ petition. Thereafter, representations was also made before the Commissioner of State, GST, for refund (Annexure P-6). These refund applications have not been scrutinized and decided by the respondent, and therefore it is submitted by learned counsel for the petitioner that suitable directions be given to concerned respondent-authority to decide the refund application in accordance with law, rules and regulations within a time bound schedule, and make the required payment along with statutory interest. Respondent no. 2 is directed to decide the application for refund of the amount along with statutory interest, which is at Annexure P-5 to the memo of this writ petition, in accordance with law - petition disposed off.

Refund of Input Tax Credit - amount to be carried forward by way of TRAN-1 Return - HELD THAT:- This petitioner has preferred the writ petition for directions to the respondent to pay ₹ 3,14,284/- for the input tax credit alongwith interest under Section 38 of Delhi Value Added Tax Act, 2004. There is also alternative prayer for allowing the aforesaid amount i.e. ₹ 3,14,284/- to be carried forward by way of TRAN-1 Return. The concerned respondents-authorities are directed to decide the application of this petitioner for refund of input tax credit for ₹ 3,14,284/- in accordance with law, rules, regulations and government policies applicable to the facts of the case. The respondent authorities will also keep in mind the decision rendered in W.P, if applicable, and will also keep in mind the alternative prayers in this writ petition. Petition disposed off.

Permission for withdrawal of petition - alternative remedy of appeal - TNVAT Act - HELD THAT:- When it is pointed out that the Petitioner has got an effective alternative remedy to prefer appeal against that order under Section 51 of TNVAT Act, within a period of 30 days from the date of its receipt before the jurisdictional Appellate Authority as mentioned in the note in the impugned order itself, Learned Counsel for the Petitioner seeks permission of this Court to withdraw the Writ Petition with liberty to resort to the aforesaid procedure. He has sent a confirmatory e-mail dated 06.10.2020 to that effect, which is placed on record. The Writ Petition is dismissed as withdrawn granting such liberty.

Rectification of mistake - error apparent on the face of record - application was dismissed on the short ground that the petitioner ought to have filed an appeal as permitted by this Court in the earlier round of litigation, and the application filed under Section 84, according to the Assessing Officer, was not maintainable - Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - Principles of Natural Justice. Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - HELD THAT:- There is no serious contest to the position that once a challenge under Article 226 of the Constitution of India is rejected and the petiti....... + More

Time Limitation for issuing notices and assessment order - Amendment of Section 42 brought vide notification dated 13.11.2016 having a retrospective effect - whether period of limitation as provided in Section 25 or rule 58 will be applicable and would give cause to the State to issue notice by commencing the proceedings or otherwise? - HELD THAT:- The time limit prescribed vide amendment was, from five years, extended to six years as per the amendment brought in 2017 in v the judgment in Baiju A.A & Others v. State Tax Officer [2019 (12) TMI 469 - KERALA HIGH COURT]. In view of the judgment, the amendment, extendimg period of limitation has been held to be prospective in nature and Assessment proceedings ,initiated after expiry of 5 years, were held to be beyond limitation. The question which is to be seen by this Court is that the a....... + More

Reopening of assessment - Assessment for escaped turnover - time limitation - Section 25(1) read with Section 42(3) of the KVAT Act - assessment year 2013-2014 - HELD THAT:- Under the provisions of Section 25(1), as amended by Kerala Finance Act, 2017, and before repeal of KVAT Act on 22.06.2017, six year period of limitation for reopening assessments cannot be relied upon to issue preassessment notices in cases, where by 31.03.2017, five year period for re-opening assessments under the unamended provisions of Section 25(1) had already expired - In the case of BAIJU A.A. AND OTHERS VERSUS STATE TAX OFFICER, STATE OF KERALA AND OTHERS [2019 (12) TMI 469 - KERALA HIGH COURT], this Court declared that the amendments to Section 25 of the KVAT Act, through the Kerala Finance Act, 2018 are illegal and unconstitutional inasmuch as they were beyo....... + More

Levy of Penalty - Section 10 (b) of CST Act - “class of goods” being exempted from payment of tax, when such goods are permitted to be purchased as per the list annexed to the Certificate of Registration - the learned Government Advocate submits that the authorities under the Act be granted liberty to verify the issue as to whether the goods purchased by the respondent are included in the Registration Certificates of the respondent. HELD THAT:- Application disposed off.

Time Limitation - discrepancies and defects in the books of accounts - Validity of assessment order - TNVAT Act. Time Limitation - case of petitioners is that orders of deemed assessment under Section 22(2) of the Act have been passed and as such, the impugned orders are barred by limitation insofar as they have been passed beyond the time limit stipulated under Section 27 of the Act - HELD THAT:- The proceedings initiating an assessment should commence prior to the date of expiry of limitation. In the present case, notices initiating proceedings for revision of assessments have admittedly been issued on 17.02.2017 in all cases, before the expiry of the period of limitation. This argument is thus rejected. Defects in the books of accounts - the argument of Mr.Shaffiq is to the effect that all material particulars as required by Rule 10(6)....... + More

Maintainability of appeal - waiver of pre-deposit - appeal was dismissed by the Deputy Excise and Taxation Commissioner (Admin), Ludhiana Division, Ludhiana on the ground that the petitioner was directed to deposit 10% of the total demand instead of 25% under Section 62(5) of the PVAT Act by 21.03.2017 - HELD THAT:- It was observed that the petitioner was having remedy under Article 226 of the Constitution of India for seeking any relaxation or waiving off the amount for hearing of the appeal. No doubt, any specific ground has not been taken for showing the financial hardship but it has been mentioned in second prayer that due to financial loss in business, the petitioner could not deposit the amount of 25% as pre-deposit. During the course of arguments, it has been submitted by learned counsel for the petitioner that the petitioner would....... + More

Dishonor of Cheque - offence under Section 138 of the Negotiable Instruments Act - direction for suspension of sentence imposed on him by the trial court - HELD THAT:- When it is noted the appellate court is justified in directing the petitioner/accused to deposit 20% of the compensation amount imposed by the trial court pending appeal as provided under Section 148 of the Negotiable Instruments Act and thereby ordering suspension of the sentence imposed on the petitioner and when the order passed by the appellate court is in conformity with the provisions of Section 148 of the Negotiable Instruments Act read with 389(1) of Cr.PC, I do not find any infirmity or error in the abovesaid condition imposed by the appellate court directing the petitioner to deposit 20% of the compensation amount imposed on him by the trial court. There is no merit in the Criminal original petition - Petition dismissed.

Summon Order - non-applicability of the Payment & Settlement Systems Act, 2007 - It was submitted on behalf of the petitioner that the prescribed procedure as provided under the Payment & Settlement Systems Act,2007, for determination of the aspect of liabilities for alleged commission of offences is provided thereunder and that the offences mentioned under the said enactment are not completely in pari materia with the provisions under the Negotiable Instruments Act, 1881 - HELD THAT:- Even the parties to CC No. 1566/2019, 1565/2019 (out of which the impugned order arises) and CC No. 1567/19, do not relate to the same parties and apparently no such common order as the order dated 11.3.2019 could have been passed in relation to CC No. 1565/19 with other cases 1566/19 and 1567/19. Furthermore, it was also essential for the learned T....... + More

Cancellation of Bail granted - Smuggling - Contraband item - Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Section 21(c), 22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act - HELD THAT:- The appellants’ car by which they were travelling from Omerga to Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials of Hyderabad Zonal Unit near the Kamkole near Hyderabad and from the possession of the appellants 45.874 Kgs of narcotic substance was recovered. Appellants’ in the statement recorded under Section 67 of NDPS Act have stated that they have started from Omerga to Chennai in the car in which the narcotic substance was being transported. The remand of the appellants was extended from time to time till 12.07.2018 by Special Court, Hyderabad. On 11.01.2018, recovery of narcotic s....... + More

Detention order - rejection of right to represent - preliminary submission of the petitioners is that before the Advisory Board, while the petitioners have been denied right to be represented through counsel, the respondent was represented through a counsel at the hearing - HELD THAT:- The fundamental right of the petitioners under Article 14 of the Constitution of India stood vitiated when they were denied the right of legal representation before the Advisory Board in the light of the fact that the respondent was, indeed, represented through counsel Mr. Jitendra Mishra. Firstly, the petitioner was never put to notice that their request to be represented through counsel before the Advisory Board was ever accepted. In fact, their representation making that request was rejected on 22.7.2020. It is also evident from the additional affidavit ....... + More

Invitation of bids for tender - qouting of double price - Section 53 B of the Competition Act, 2002 - HELD THAT:- The CCI has found that the Appellant failed to define or suggest relevant market. It found it is neither necessary nor feasible to delineate the relevant market in the absence of requisite data on record particularly in the light of market emerging out of RSDOs reply which CCI received. The CCI deciphered that apart from the Opposite Party (Respondent No. 2) there are at least four other major global players in the market for rolling stock mounted GPR for Ballast Inspection in India. The Order as reproduced names of the other players. The Appellant is trying to put the burden on CCI to find out the relevant market instead of itself defining or suggesting relevant market with prima facie material. Apart from this, the order of ....... + More

Review Petition - Restraint on transfer of disputed property - scope and ambit of the Court’s power under Section 114 read with Order 47 Rule 1 CPC - HELD THAT:- To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exerci....... + More

Grant of Compulsory Bail - Section 167(2) of the Code of Criminal Procedure - whether an application for a bail under Section 439 Cr.PC would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.PC if the condition stipulated therein were met? HELD THAT:- In HUSSAINARA KHANTOON & ORS. VERSUS HOME SECRETARY, STATE OF BIHAR, PATNA [1979 (4) TMI 159 - SUPREME COURT], the Supreme Court had considered affidavits filed by the Superintendent of the Patna Central Jail, Superintendent of Muzaffarpur Jail and the Superintendent of the Ranchi Central Jail which indicated towards prisoners who were confined in the said jails and who had been produced before Magistrates from time to time in compliance with the requirement of the Proviso (a) to Sectio....... + More

Interpretation of statute - validity of Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules - Bar Council of India as well as the Bar Council of Gujarat has a common argument to canvas that the rules framed by the Bar Council of Gujarat (Enrollment) Rules under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 puts an embargo upon the writ applicant unless she resigns from her present employment and files an affidavit to that effect. Whether we should strike down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules being violative of Article 14 of the Constitution or we should uphold the validity by adopting the principle of 'reading down' or 'reading into' so as to make the rule effective and workable and ensure the attainment of the object of the rule? HELD THAT:- Ordinarily, the....... + More

Grant of Regular Bail - applicant has submitted that the allegations made against the applicant are vague and he has been falsely implicated in the alleged offence - HELD THAT:- In the facts and circumstances of the case and considering the nature and gravity of accusation made against the applicants in the FIR, this Court is of the view that discretion is required to be exercised in favour of the applicants for grant of bail. Moreover, the applicants assure that they will abide by the terms and conditions that may be imposed by the Court and shall not commit any breach. Further I do not intend to go into the merits of the matters and I am persuaded to exercise my discretion in favour of the applicants. The investigation is going on and the charge-sheet is not filed and the trial would take a considerable long period of time. The applican....... + More

Dishonor of Cheque - offence punishable under Section 138 of NI Act - legally enforceable debt or not - allegation is that the cheques of the petitioner/accused have been forcibly taken away by one Meena Pandi, for which, complainant was also lodged and the cheques, which were forcibly taken have been misused through the respondent/complainant and different others under the provisions of the NI Act - HELD THAT:- The cheque [ExP1] belongs to the petitioner and the same has not been denied. The cheque [ExP1] was presented for collection by the respondent/ complainant on 16.09.2010 and the same was returned with an endorsement 'account closed'. The respondent issued statutory notice dated 13.10.2010 and the same was returned unserved as 'unclaimed' and hence, the complaint was filed - Since the issuance of cheque [ExP1] is ad....... + More

Dishonor of Cheque - Grant of Anticipatory Bail - Act of Cheating - applicant states that he has got nothing to do with the alleged transaction with the 2nd accused and the defacto complainant and that it was entirely the responsibility of the 2nd accused who have agreed to arrange the job Visa as stated by the defacto complainant - HELD THAT:- The promise to arrange Visa was made entirely by the 2nd accused. He was not able to fulfill the promise, and therefore, agreed to return the amount. He entered into an agreement, which is produced before this Court, which indicates that he has unconditionally agreed to return the amount to the defacto complainant. He has also issued cheques for the amount and the cheques were not honoured and in consequence of that a complaint under Section 138 of the Negotiable Instruments Act has also been filed....... + More

Dishonor of Cheque - commission of the offence punishable under Section 138 of the NI Act against the accused - issuance of Cheque for the discharge of debt or liability - rebuttal of presumption as provided by the provisions of Sections 118 and 139 of the NI Act - HELD THAT:- Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act, it becomes evident that in a trial under Section 138 of the NI Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused....... + More

Dishonor of Cheque - commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumptions as envisaged by the provisions of Sections 118 and 139 of the N.I.Act - HELD THAT:- Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that, as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 a....... + More

Dishonor of Cheque - petitioner challenges the composite order taking cognizance and issuing summons on the grounds that there is no proof as to when the notice under Section 138 of the Negotiable Instruments Act read with Section 141 of the Negotiable Instruments Act was served upon these petitioners - main contention raised by the petitioner is that the complainant in his complaint petition, has not stated as to when notices under Section 138 of the Negotiable Instruments Act was served upon the petitioners. HELD THAT:- The deeming fiction in respect of service of notice is applicable in respect of notice under Section 138 of the Negotiable Instruments Act also if the notice is properly and correctly addressed. In this context, it is to be noted that it is not the case of the petitioners that the notice so issued is not properly or corr....... + More

Dishonor of Cheque - acquittal of acused - the trial court found that the accused is not guilty under Section 138 of the Negotiable Instruments Act - Existence of offence punishable u/s 138 of NI Act or not - HELD THAT:- The trial court after considering the entire oral and documentary evidence came to the definite conclusion that the accused is not guilty under Section 138 of the Negotiable Instruments Act. The lower court after perusing the oral and documentary evidence came to such conclusions. There are no no reason to interfere with the finding of facts by the trial court - Criminal Appeal dismissed.

Dishonor of Cheque - alteration of charge invoking the power under Section 216 Cr.P.C. - HELD THAT:- It is an admitted fact that the case pending against the petitioner is initiated under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act is usually tried as a Summary Trial or as a Summons Case. In those proceedings, there is no question of framing charge. As per Section 251 Cr.P.C., only particulars of the offence will be put to the accused and there is no framing of charge in the summons Trial. Section 216 Cr.P.C. is included in Chapter XVII of the Cr.P.C. That Chapter deals about charge. Section 216 is applicable when a court want to alter or add to any charge at any time before the judgment is pronounced. To attract Section 216 Cr.P.C. a charge is necessary. Then only it can be altered or any ....... + More

Dishonor of Cheque - prosecution case is that the accused has misused the blank cheque leaf and papers signed by the complainant, which is given to the 1 st accused as security and hence cheated the de facto complainant - HELD THAT:- This is not a fit case in which I can quash the entire proceedings in Annexure-2 final report. Of course there may be legal contentions to the petitioners regarding the maintainablity of the prosecution. But, when the petitioners themselves admit that this is the counter blast to a prosecution initiated by them against the de facto complainant under Section 138 of Negotiable Instruments Act, this Court can not quash one proceedings invoking the powers under Section 482 of Cr.P.C. The case of the de facto complainant in this case is his defence in Annexure-3 proceedings initiated under Section 138 of Negotiable Instruments Act - Application dismissed.

Dishonor of Cheque - offences under Sections 138 & 142 of Negotiable Instruments Act - petitioner would submit that the petitioner is innocent and he has not committed any offence as alleged by the prosecution - HELD THAT:- The issue decided in the case of DEVENDRA PRASAD SINGH VERSUS STATE OF BIHAR & ANR. [2019 (4) TMI 1876 - SUPREME COURT] where it was held that High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed....... + More

Cheque issued for Dishonor of Cheque - Recovery of arrears of rent - HELD THAT:- There is no dispute that the petitioner is the head lessor ; the second respondent is the lessee ; and the first respondent is the sub lessee. At the outset, it is to be stated that the first respondent owes no amount to either the petitioner or the second respondent as arrears of rent. On the other hand, the second respondent failed to discharge her liability to the petitioner and was in arrears of rent for certain period, i.e., August 2010, July 2011 and from 01.04.2012 to 30.09.2013 - Admittedly, the second respondent issued the cheque for a sum of ₹ 14,885/-, which was returned with the endorsement "funds insufficient", but there is no record to show that the petitioner had initiated any criminal prosecution against the second respondent u....... + More

Dishonor of Cheque - vicarious liability - Complaint against the CEO / erstwhile Director (Petitioner), even though they were not signatory of the cheque - Personal assurance and knowledge - legal notice of demand was sent by the complainant but despite the receipt of the notice the Accused persons failed to remit the alleged outstanding amount - summon of Accused including the Petitioner - Sections 138/141/142 of the NIA - Whether the complaint and the summons can be quashed qua the Petitioner in the absence of the complainant? - HELD THAT:- The said issue is settled and the law on this is no longer res integra. A similar situation had arisen in the case of Lafarge Aggregates & Concrete India P. Ltd. vs. Sukarsh Azad & Ors. [2013 (9) TMI 1188 - SUPREME COURT] decided by the Supreme Court on 10.09.2013. In the said case the Respon....... + More