Estimation of income - bogus purchases - CIT(A) restricted the disallowance to the extent of 12.5% impugned purchase / disputed purchase - ITAT taking the consistent the disallowance of purchase in the present case restricted to 6% of the disputed purchases - HELD THAT:- On an identical question of law [ 2023 (1) TMI 835 - GUJARAT HIGH COURT ] and held with the case of Shri Bhanwarlal Jain and others involved therein, if addition directed of 6% of the disputed purchases by noting that the profit margin in the said industry is 5% to 7% without even going by the estimation of the possible profit margin in the industry, suffice to note that in all cases relating to Shri Bhanwarlal Jain, both, the Assessing Officer and the CIT (Appeals), Mumbai, have chosen to make addition @ 3% to 5% of the bogus purchases. That view of the matter, no pur....... + More

Addition u/s 68 - Having Two PAN and using differnt names - Validity of claim of the Assessee that he is running Hotel Management Business - assessee has made huge cash deposits in the bank account with Axis Bank operated in the name of Shri Rajiv Rama Pattanayak - assessee is filing two separate returns of income on two different names and PANs. - A.Y. 2010 11 - HELD THAT:- As no details are available on record as to whether TDS was deducted from the Hotel Management Charges. There are also no details regarding the purchase of raw materials for running the catering business during the year under consideration. There is no breakup of various expenses charged to the profit and loss account against the income of Rs. 14,15,620 from Hotel Management Charges. Thus, we agree with the findings of the AO that the balance sheet does not show....... + More

Validity of assessment u/s. 143(3) by change in incumbent but without issuance of order u/s. 127 - Violation of mandatory procedural provision - Assumption of jurisdiction by AO in competing the assessment proceedings u/s. 143(3) - assumption of jurisdiction by the ITO ward 1(4) without issuing any valid notice u/s. 143(2) - whether an order u/s. 127 was issued by the Ld. PCIT in the present case or not to effect the change of incumbent? - HELD THAT:- Admittedly, in the present case a notice u/s. 143(2) were issued by ITO ward 1(1) who is not having a valid jurisdiction in the case of assessee, however, subsequently the case was transferred to ITO ward 1(4), who is the jurisdictional AO for the assessee. For change of incumbent no order u/s. 127 was issued by the Ld. PCIT having jurisdiction over such officers and the assessee s c....... + More

Permanent Establishment in India - Dependent Agent (DAPE) - advertisement revenue - India-Mauritius DTAA - assessee is a foreign company, registered under the laws of Mauritius engaged in the business of telecasting its sports channel - Ten Sports - assessee appointed Taj India as advertising sales agent to sell commercial advertising time to prospective advertisers and other parties in India, in connection with business of programming and telecasting on Ten Sports / Ten HD / Ten Golf channels and to collect advertisement charges from Indian exporters and advertisers on behalf of the assessee - HELD THAT:- As in respect of Advertisement revenue no material has been brought on record by the Revenue that Taj India has habitually exercised the authority to conclude the contract on behalf of the assessee. Therefore, with respect....... + More

Addition on account of purchase return - variation of G.P. and N.P ratio - assessee is selling the products on consignment basis on sale of Sabyasachi products - goods are received by the assessee on consignment basis - as argued as per the double entry accounting principles, if there is an increase in cost of purchase, then there is a corresponding increase in valuation of closing stock and there will not be any impact on income - HELD THAT:- Assessee is in the business of trading as well as trader of Sabyasachi products for which assessee receives commission on the basis of consignment sale. We observe from the record that assessee s main as well as major income is from commission. It is very much visible from the statement of profit and notes forming part of the financial statements in particular Note - 14 and Note 16. It ....... + More

Disallowance u/s. 14A r.w.s. Rule 8D being expenditure incurred towards earning exempt income - AO noted that the assessee has claimed exemption u/s. 10(34) towards dividend and interest on tax free bonds u/s. 10 - assessee made an adhoc disallowance in relation to income not forming part of total income under proportionate expenditure of treasury department in terms of section 14A - HELD THAT:- This issue has been settled by the Hon ble jurisdictional High Court in assessee s own case for AY 2011-12 2012-13 [ 2021 (2) TMI 1366 - KARNATAKA HIGH COURT] as held assessee has admittedly not incurred any expenditure. This case pertains to income on dividend, which by no stretch of imagination can be treated to be an expenditure to attract the provisions of Section 14A of the Act. In view of aforesaid enunciation of law by WALFORT SHA....... + More

TP Adjustment - corporate guarantee to AE constitutes an international transaction u/s 92B - CIT(A) reducing the arm s length guarantee fee rate of 2.5% determined by the Assessing Officer/TPO to 0.5% - HELD THAT:- For the Assessment Year 2008-09 and 2009-10 the Tribunal had, following the decision of the Tribunal in the case of the Assessee for the Assessment Year 2007-08 [ 2015 (5) TMI 639 - ITAT MUMBAI ] agreed with the CIT(A) that providing corporate guarantee to an AE constitutes an international transaction and had accepted the guarantee fee rate of 0.5% determined by the CIT(A) as the arm s length rate while rejecting the rate proposed by the Assessee. There is no change in the facts and circumstances of the case. Nothing has been placed before us to persuade us to depart from the view taken by the Tribunal in the case of the As....... + More

Addition on account of Share Application Money u/s 68 - burden of proving the creditworthiness of creditors and the genuineness of the transaction - HELD THAT:- CIT(A) found that the assessee failed to prove the genuineness of the transaction and the creditworthiness of the creditors. The initial burden of proving the creditworthiness of creditors and the genuineness of the transaction is cast upon the Assessee as per Section 68. In the present case, as the Assessee has not proved the burden cast upon it u/s 68 of the Act by providing requisite evidence before the Authorities, therefore, in our considered opinion, the Ld. CIT(A) has rightly confirmed the addition on the basis of remand report. Disallowance of addition in the fixed asset, addition on account of sundry creditors and the disallowance expenses were also remained ....... + More

Assessment u/s 153A - undisclosed investments - reopening of assessment u/s 153A beyond six years but not more than ten years - relevant assessment years - evidence available to the AO was relating to the loose sheet whereby the unexplained investment of the assessee has been taken by the AO at Rs.45,00,000/- - Whether any incriminating material found during the search action? - HELD THAT:- The provisions of section 153A are in itself is separate code. After the search action u/s 132 of the Act, the assessment/reassessment is reopened for the six years preceding the date of search. However, as laid down in case of Abhisar Buildwell P Ltd [ 2023 (4) TMI 1056 - SUPREME COURT ] no addition can be made in respect of completed/unabated assessment years in assessments carried out u/s 153A in the absence of any incriminating material fou....... + More

Additions against unsecured loan as accommodation entries - Assessee claimed that, it may be considered as accommodation entries/circular-trading/ layering of funds and therefore suo-moto offered commission income in the range of 0.5% to 1% of the funds circulated by the company as its income - HELD THAT:- It was the assessee who had voluntarily stated before the AO that if the monies transacted through the two (2) entities are held to be tainted, then the company may be regarded as entity involved in providing accommodation entries thereby suggesting that it was not the beneficiary of the unexplained sum of Rs. 87 Lakhs but it was an aide who was facilitating the same and therefore only commission income could be inferred in relation thereto. If that be so, then as a natural corollary all the transactions conducted by the assessee ....... + More

Estimation of income on deficit gold jewellery - in search proceedings AO noted shortage of stock of gold ornaments as compared to the stock register maintained by the assessee - suppressed sales - estimation by applying the gross profit rate of 6.44 % on the value of the alleged deficit stock found in course of search - contention of the ld. A.R. is that same amount of jewellery was found in the residence of Managing Director of assessee during the course of search action and the same was the stock taken from the shop by Managing Director for the purpose of safe custody - HELD THAT:- As stocks have been kept in the MD s residence before bar coding of the same. It was also admitted that jewellery found at the residence of MD is also having bar code of the shop. Thus it cannot be presumed that excess stock found during the course....... + More

Exemption u/s 11 and 12 - Charitable Activity u/s 2(15) - Exemption denied invoking section 13(8) as there is no application of section 2(15) in the activity of the assessee - assessee is purely the urban development concern - addition made for payment towards public utility and towards Municipal Community - HED THAT:- The assessee is an Urban Development Society, and the assessee is developing land provided by the municipal community with the motive for development of Fazilka City after development the land has to be sold, so, in such circumstance, the profit has to be computed on based on two methods only, i.e. percentage completion method or the project completion method. The assessee is purely the urban development concern and claimed exemption u/s 11 and 12. The observation of the revenue is dismissed. As the assessee is eligib....... + More

Penalty u/s 271B - not getting the books of account audited u/s 44AB - as alleged cash deposits made exceeded the threshold limit as per section 44AB - CIT(A) held that since the assessee failed to get his accounts audited u/s 44AB treated the cash deposits as turnover of the assessee, though it was affected on behalf of the Principal and since the assessee was getting commission and discounts on such sales - HELD THAT:- Principal i.e. Bharti Airtel Ltd. is liable to deduct tax at source. The service provider is responsible for collection of moneys from the post paid subscribers of Airtel, on behalf of Airtel in accordance with the terms of the Agreement and the Airtel shall pay the commission / incentives. The agent is liable to pay tax only on the commission / incentive received. AO levied penalty on the assessee as the cash dep....... + More

Condonation of delay filing appeal in ITAT - delay of 1326 days - sufficient Reason for delay - HELD THAT:- If we examine the explanation of the assessee then, it would reveal that basically the delay has occurred on account of lacunae by the erstwhile tax consultant of the assessee Shri S.K. Paul and the assessee did not have any malafide intention to cause the delay. Therefore, cumulative setting of all these factors would suggest that there is no deliberate delay at the end of the assessee because the assessee was not going to gain anything from delaying this appeal. It is also pertinent to note that the Hon ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy [ 1998 (9) TMI 602 - SUPREME COURT] has observed that period of delay does not matter. It is the quality of the explanation. If some valid reason is the....... + More

Power of the appellate authority to allow the claim of deduction which was not claimed in the return of income - whether AO erred in not allowing the deduction u/s 24(b), 80C and 80D merely for the reason of clerical error in the return of income? - revenue cannot take advantage of mistake/ignorance of the assessee by placing reference to the Circular No. 14 of 1955 dated 11.04.1955 issued by the CBDT in which stated that the officers of the department must not take advantage of the ignorance of the assessee about his rights and it is their duty to assist the tax payer in every reasonable way particularly in the matter of claiming and securing relief - HELD THAT:- Since the assessee has failed to claim sum for interest of housing loan u/s 24(b), u/s 80C and u/s 80D respectively and the assessee in order to substantiate its claim placed....... + More

Ceasure of income tax settlement commission - restriction to the filing of the application before the Interim Board for Settlement - by Finance Act, 2021, which was notified on 01.04.2021, the ITSC was abolished and an Interim Board was constituted only to deal with applications pending as of 01.02.2023 - revenue restricted the filing of the application before the Interim Board for Settlement only by the assesses who were eligible to file the application for settlement on 31.01.2021 - case of the Writ Petitioners that their statutory remedy of approaching the ITSC , cannot be taken away retrospectively - as argued Department is entitled to prescribe the last date even beyond the original cut-off date as prescribed by the legislation. Accordingly, when it has extended the last date from 01.02.2021 to 30.09.2021, it can only ....... + More

Compounding of offences - period of limitation - application rejected for the reason that the same was filed beyond the prescribed time limit, i.e., a period of 12 months from the date of launching of prosecution fixed fixed vide circular F.No. 285/08/2014-IT(Inv.V)/147 dated 14.06.2019 - petitioner contend that as per Section 279(2) of the IT Act, there is no provision with regard to the fixation of time limit for filing the application for compounding of offences HELD THAT:- Since the idea of the Legislation was that the compounding of offences is permissible either before or after the institution of the proceedings, the CBDT cannot issue a circular contrary to the object of the said provisions. The explanation, which empowers the CBDT to issue circular, is only for the purpose of implementation of the provisions of the Act with r....... + More

Validity of Reopening of assessment - petitioner was selected for scrutiny assessment under CASS for limited scrutiny to verify the low income compare to high loans/advances/investment in shares and high interest expenses relatable to exempt income u/s 14A during the previous year - HELD THAT:- It appears that the respondent has recorded the reasons for reopening only on the basis of the material available during the course of the original assessment and there is no fresh material to form a reason to believe that income has escaped assessment. The assessee has disclosed all material facts during the course of the original assessment and even in response to the notices issued u/s 143(2) and 142(1) of the Act. The assessment order is passed after considering the details provided by the assessee and therefore it cannot be said that ....... + More

Levy of penalty u/s. 271(1)(c) - AO completed assessment u/s. 143 r.w.s. 153A determining the total income on account of unexplained money u/s. 69 based on seized materials - CIT(A) upholding the penalty levied on the ground that assessee has concealed the particulars of commission income - HELD THAT:- Addition is sustained by the ld. CIT(A) is based on seized materials, during the course of search. There is no estimation of income by the ld. CIT(A). Thus, case laws relied upon by the assessee are not applicable to the facts of the present case. CIT(A) as considered the Supreme Court judgment in the case of Mak Data Pvt. Ltd. [ 2013 (11) TMI 14 - SUPREME COURT] wherein as observed that the AO has to satisfy whether the penalty proceedings be initiated or not during the course of the assessment proceedings and the AO is not required....... + More

Exemption u/s 11 - charging of guarantee fees for services by the assessee trust - charitable activity u/s 2(15) - as per revenue assessee trust is engaged in the advancement of general public utility and is charging fee in relation to the services rendered to trade, commercial etc. - CIT(A) has also denied the claim of the assessee trust seeking benefit u/s 11 on the ground that since the assessee trust is charging guarantee fee, which amount is substantial, the assessee trust is not carrying out any charitable activity - HELD THAT:- Assessee trust having been established by the Government of India with the object and purpose of ameliorating the difficulties of the small scale industries and micro enterprises in availing credit facilities from financial as well as banking institutions without having collateral security and/or third p....... + More

Delayed deposit of the employees share of contributions towards EPF/ESIC u/s. 36(1)(va) - adjustments carried out u/s 143(1) - HELD THAT:- The aforesaid issue had been looked into in the case of Satpal Singh Sandhu [ 2023 (5) TMI 1274 - ITAT RAIPUR] and Gurmeet Singh Hora [ 2023 (8) TMI 1383 - ITAT RAIPUR] . The Tribunal while deliberating at length on the aforesaid issue had after drawing support from the orders of Kalpesh Synthetics (P) Ltd. [ 2022 (5) TMI 461 - ITAT MUMBAI] and P.R. Packaging Service [ 2022 (12) TMI 841 - ITAT MUMBAI] had held that no such disallowance of the delayed deposit of the employee s share of contribution towards labour welfare fund could have been made in the hands pf the assessee company while processing its return of income u/s. 143(1)(a) Disallowance u/s. 43B(a) of the Act towards service tax pai....... + More

Revision u/s 263 - adjustment of LTCG twice - As per CIT assessee has wrongly adjusted the long term capital loss twice, once with LTCG and again with STCG in its computation of total income as per the normal provisions of the Act - HELD THAT:- Admittedly, it is a fact on record that it occurred due to an inadvertent mistake on the part of the assessee. Further, it is evidently demonstrated that this does not have a bearing on the income-tax liability for the year under consideration. The effect is on the availability of MAT credit in subsequent year for which assessee submitted to make the course correction. Thus, in this context, it is a settled law that scope of section 263 to revise an assessment is different from scope of section 154 to rectify any mistake apparent from record. Provisions of section 263 give jurisdictional powe....... + More

Orders appealable before the Appellate Tribunal - order passed by a Commissioner u/s 119(2)(b) - Condonation of delay in filing of the audit report in Form No. 10BB r.w Rule 16CC of IT Rules, 1962 rejected - HELD THAT:- The captioned appeal filed by the assessee appellant is not maintainable before us. We say so for the reason that an assessee is not vested with any right to assail an order passed by a Commissioner u/s 119(2)(b) of the Act by preferring an appeal before the Appellate Tribunal. As an order passed by a Commissioner u/s 119(2)(b) of the Act does not find any mention in the list of orders that are appealable before the Appellate Tribunal, therefore, we are constrained to observe that the present appeal filed by the assessee is not maintainable before us. Our aforesaid view is supported by the judgment of Rasida Ibra....... + More

Validity of reopening of assessment - reason to believe v/s 'reason to suspect' - allegation of issue of shares on premium to paper companies - HELD THAT:- Adverse information may trigger reason to suspect , which is not sufficient to re-open an assessment because the requirement of law is reasons to believe escapement of income and not reason to suspect . This fine distinction should be borne in mind and when an AO receives an adverse information against an assessee, then he must make reasonable inquiry and collect material which would make him believe that there is in fact escapement of income. It is also settled position of law that when the validity of the reasons recorded is tested, then it should be examined on a standalone basis. Nothing can be added or subtracted. The AO should speak through the reasons rec....... + More

Income taxable in India - reimbursement of expenses from the India subsidiaries - Royalty receipts - benefit of DTAA - assessee is a non-resident corporate entity incorporated in United States of America ( USA ) - Claiming that cost-to- cost reimbursement of software license expenses is not taxable in India under the provisions of India USA DTAA the assessee did not offer it to tax - HELD THAT:- Assessee has entered into a separate agreement with Indian subsidiary, in terms of which, the Indian subsidiary provides certain back office support services to the assessee and gets remunerated at cost plus 15% mark-up. A reading of the draft assessment order certainly gives an impression that the AO has mixed up both the transactions and under a misconceived notation that the assessee has received markup over the cost of software, has pro....... + More

Rejection of appeal of the petitioner - Correctness of proceedings u/s 74 of the GST Act - petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction as well as the genuineness of the transactions - HELD THAT:- It is admitted fact between the parties that the goods have been shown to be purchased from M/s Krishna Trading Company, Mathura. In support thereof, tax invoice, e-way bill, weighment receipt before after loading, bilty, etc. were filed and on the basis of the said documents, ITC was availed by the petitioner. Thereafter, on scrutiny, neither M/s Krishna Trading Company was found to be in existent, nor the persons, who issued the bilty and weighment slip, was found in existent. Once the very basis to show that the movement of goods has taken place was doubted, the petitioner, apparently....... + More

Rejection of bail - fake entities created to pass on and avail Input Tax Credit under the GST regimen (ITC) to defraud government exchequer - exports declared are all bogus and fake - HELD THAT:- In RATNAMBAR KAUSHIK VERSUS UNION OF INDIA [ 2022 (12) TMI 263 - SUPREME COURT] , the Hon ble Supreme Court granted bail to the petitioner therein, the facts of the case being somewhat similar to the present case. It is true that the allegation made against the petitioner is that he received the benefit of the amount that was granted to different entities to the tune of Rs. 7,79,52,045/-, obtaining refund of Rs. 7,79,52,045/- and it is contended by the prosecution/complainant that there is likelihood of the discovery of more such transaction, but it is also not disputed that the final prosecution report has been filed in the case. The pet....... + More

Validity of seizure order as well as penalty order - variation in the description of good actually found with that mentioned in the documents - requirement to examine the documents accompanying the goods at the time of seizure - HELD THAT:- The finding that the parties had under valued the goods or there was any intention to avoid payment of correct amount as tax may justify seizure and penalty but cannot be made ground to not treat the petitioner as owner of the goods. The respondents ought to have examined the documents accompanying the goods at the time of seizure in terms of their own Circular dated 31.12.2018 in determining the said issue. The order to the extent it seeks to reject the prayer for release of goods in favour of the petitioner, cannot be sustained. It is accordingly quashed to the said extent only. The second resp....... + More

Availment of ineligible transitional credit availed by the appellant or not - application filed belatedly after five years from the prescribed date - HELD THAT:- Section 140 of the CGST Act enables a registered person to take in its electronic credit ledger, the amount of CENVAT credit/input tax credit carried forward in the return for the period up to 30/6/2017. Sub-section (5) of Section 140 prescribed a condition for taking transitional credit. The condition is that the invoice or any other duty or tax paying document pertaining to the transitional credit has to be recorded in the books of account of the registered person within thirty days from the appointed day. i.e., within 30th July, 2017. Proviso to the said Section permits such entry of invoice in the books of account beyond the thirty days period by a further period of thirty....... + More

Input Tax Credit (ITC) - Failure of the supplier to deposit the Tax / GST amount - Failure to produce the Tax Invoice - constitutional validity of provisions of Section 16(2)(c) of the CGST Act and Rule 36(4) of the Central Goods and Services Tax Rules - HELD THAT:- It is settled that input tax credit is in the nature of a benefit/concession and not a right extended to the dealer under the statutory scheme. The said benefit can accrue to the assessee only as per the scheme of the statute - It is equally settled that the rule-making authority can provide restrictions in extending the concession . The benefit of an input tax credit can be availed by a purchasing dealer who sells or manufactures goods using raw materials on which tax has been paid only on satisfaction of the conditions for such availment enumerated in the statute. O....... + More

Denial of claim for transitional credit in respect of inward supplies made before 01.07.2017 - petitioner s application for extending the limitation for claiming the transitional credit within the extended period of limitation of sixty days rejected - HELD THAT:- From perusal of Sub-section (5) of Section 140 of the GST Act, it is evident that beyond the period of thirty days an assessee can claim the transitional credit of input tax within another thirty days on an order passed by the Commissioner. Unless the order is passed by the Commissioner extending the period of limitation up to sixty days or less than, an assessee cannot claim the input tax credit in respect of the inward supply taken before 01.07.2017 - In the present case, the petitioner claimed input tax credit in his return after the initial period of thirty days expired, b....... + More

Refund of accumulated Input Tax Credit (ITC) - Turnover of Zero-rated supplies - mistake in submission of documents through common portal while filing applications in form GST RFD -01 - GST officer observed that, Shipping bills were not signed by appropriate authorities or obtained sanctioned from higher official as such those shipping bills cannot be accepted as valid proof of export - HELD THAT:- The applicant has uploaded the documents which are required by the Circular. Only mistake was made by the petitioner is that he had uploaded the quadruplicate copy of the shipping bills which was countersigned by the Inspector of Customs. Subsequently, when it came to know about the anomalies, the petitioner has submitted the triplicate copy which was countersigned by the Superintendent of Customs before the Authority for consideration but ....... + More

Refund of unutilized Input Tax Credit (ITC) - zero-rated supply - Clubbing of invoices - HELD THAT:- Admittedly the refund claim was for an aggregate amount of Rs. 10,09,000/-. The refund has been allowed only for Rs. 6,86,121/-. There has also been deduction on account of an invoice being no. EXP/2021-22/005 for Rs. 4,76,626/- - In such view of the matter the Appellate Authority in clubbing the refund claim of the petitioner with the invoice no. EXP/2021-22/005 dated 28 February, 2022 and in passing the impugned order has acted contrary to law. The clubbing or taking into account of this particular bill was without authority of law. Even if a portion of the claim was rejected, the simultaneous recovery was impermissible. The portion of the order whereby Output Tax Invoice no. EXP/2021- 22/005 for Rs. 4,67,626/- has been denied and ....... + More

Suspension of registration of petitioner - no opinion recorded as stipulated under Rule 21A (2) of the CGST Rules, 2017 - principles of natural justice - HELD THAT:- As the petitioner has already submitted his reply to the show cause notice dated 12.10.2023, it would serve no purpose to keep the petition pending and therefore, the petition is disposed of with a direction to the respondent no.3, Assistant Commissioner/Superintendent Range-34, Division Hapaur, Commissionerate Noida to complete the proceedings instituted through show cause notice dated 12.10.2023 within three weeks from today and till the proceedings under Section 29 of CGST Act, 2017 are completed by the respondent no.3, the suspension of the registration of the petitioner as noted in the order dated 12.10.2023 shall remain stayed. Petition disposed off.

Levy of IGST - supplies received from its holding company - secondment of employees - Reverse Charge Mechanism - HELD THAT:- Prima facie, salaries paid to employees, even though seconded by a foreign affiliate, in terms of the employment agreements with the respective employees, absent anything more, cannot be considered as payment for manpower services supplied by the foreign affiliate. List on 10.01.2024 - In the meanwhile, the proceedings pursuant to the impugned SCNs are stayed.

Refund of GST (amount paid twice) - tax paid in respect of arecanuts that were being transported without a valid E-Way Bill - HELD THAT:- The petitioner s grievance arises on account of his inability to file an application for refund online. It is stated that there is no option available in the portal for the petitioner to apply for a refund online - Undisputedly, the tax penalty and fine quantified in GST MOV-10 dated 28.02.2022, cannot be collected twice over. The respondent authorities are, thus, required to refund the same. It is considered apposite to dispose of the petition by permitting the petitioner to make an application for refund manually to Respondent No. 3 - petition disposed off.

Principles of natural justice - cancellation of GST registration of petitioner - cancellation without issuance of any SCN or without affording the petitioner, any opportunity to be heard - HELD THAT:- According to the petitioner, it did not receive the SCN. However, even if the respondent s contention is accepted that a SCN, a copy of which is handed over, was, issued to the petitioner, the same would be of little assistance to the respondent because the SCN does not mention any time or date for personal hearing. Thus, the petitioner was not afforded a hearing to contest the SCN. The impugned order cancelling the petitioner s registration is void as it has been passed in violation of the principles of natural justice - the impugned order is not informed by reason. It does not set out any ground for cancelling the petitioner s GST regis....... + More

Seeking grant of bail - invocation of Section 438 of the Code of Criminal Procedure at the stage of summons - HELD THAT:- Admittedly, no steps were taken by the Department under Section 69 of the Central Goods and Services Tax Act, 2017, though the petitioner had been appearing over a period of time. The Honourable Supreme Court in THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER ANR. ETC. [ 2023 (7) TMI 1008 - SUPREME COURT] held that at the stage of summons the person summoned cannot invoke Section 438 of the Code of Criminal Procedure. The Criminal Petition is disposed off.

Seeking review of assessment order - Input Tax Credit - Even though statutory notices were issued to the appellant, she did not respond - violation of principles of natural justice - HELD THAT:- What is sought by the appellant, in effect, is the review of the said assessment order. The appellant made no case for rectification. The rectification under section 161 of the GST Act is permissible only when there are errors apparent on the face of the record, in a situation where the show cause notice was contested, which is not the case here. When a show cause notice is not contested, the resultant order passed assumes the nature of an agreed order and a rectification application will not lie to correct a factual mistake therein. There are no merit in the appeal - appeal dismissed.

Validity of SCN - petitioner did not avail the opportunity of hearing - petitioner claimed ITC, but did not file GST-ITC 02 electronically as per Section 18 of CGST Act and Rule 41 of the CGST Rules 2017 - HELD THAT:- The question, if electronically filing in GST-ITC 02 could not be because of some technical error, non-availability on GST portal of such Form at the relevant point of time, is a question, which can be duly considered and decided if such plea is taken in the objections pursuant to the show cause notice, by the competent authority. Even if it could not be filed electronically for the reason as mentioned in the letter of the petitioner and also of TDN and manual filing could have been done or the petitioner could have waited for some period for availability of GST-ITC 02 Form on the portal, is also a question, which can be ....... + More

Exemption from GST - activities carried by DISCOMS against recovery of charges from consumers under State Electricity Act - guarantee provided by State Government to state owned companies against guarantee commission - HELD THAT:- The petitioner was neither collecting nor depositing GST, in respect of the services in question, prior to the issuance of the impugned circular. However, notwithstanding that paragraph No. 4 of the circular was quashed by the Gujarat High Court, the petitioner has continued to collect GST from its consumers and deposit the same with the GST authorities. Resultantly, the consumers are now burdened with the liability to pay GST in respect of services, which according to the petitioner are exempt from the levy of GST - it is found difficult to accept that the petitioner could collect any GST from its consumers ....... + More

Seeking grant of Regular Bail - involvement in utilizing bogus Input Tax Credit (ITC) through fake documents - mala fide intention of not paying taxes - HELD THAT:- From the record it is apparent that the petitioner is in custody since 20.09.2022 i.e for the last more than one year. All the offences are triable by the Court of Magistrate and the conclusion of the trial may take quite a long time. Thus, the fact as to whether the FIR in the present case is maintainable or not, shall be adjudicated by the Trial Court during the course of trial. The petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate - Petition allowed.

Validity of assessment order - against Ext.P1 assessment order, the petitioner has filed Ext.P2 appeal and Ext.P3 stay application - HELD THAT:- No decision has been taken on the stay application. Learned counsel also submitted that the appeal is on time. Learned counsel further submitted that pending consideration of the appeal and stay application, Ext.P4 demand notice has been issued. Considering the aforesaid facts, the present writ petition is disposed of with a direction to the 2 nd respondent to consider and pass orders on Ext.P3 stay application of the petitioner in accordance with law, within a period of one month. For a period of one month, Ext.P4 notice shall not be given effect.

Exemption from GST - activity of affiliation - two colleges affiliated to Bharathiyar University, Coimbatore - whether the services provided by it to its constituent colleges such as the petitioners viz., self-financing and Management Colleges, were exempted from GST vide Entry 66 of Notification No.12/2017-CT (Rate) dated 28.06.2017, or not - HELD THAT:- There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 W.P.No.5967 of 2023 and not to work rela....... + More

Seeking grant of bail - avalling and passing on of ineligible ITC on the strength of fake invoices issued without actual supply of goods - HELD THAT:- In the present matter, the tax liability above bailable offence of 5 Cr. is Rs. 38,81,443, the entities who supplied articles to the applicant are active on GST Portal but not verified by the department, there is no chance of accused fleeing from the country nor he is a habitual offender and applicant is no more required for custodial interrogation when the custodial interrogation of applicant was not sought by the department and applicant was sent to judicial custody directly on 14.10.2023, the offence falls within preview of Section 41 A CrPC having punishment of 5 years but no notice u/s 41 A CrPC has been given, therefore, in view of the abovesaid facts and circumstances, the present....... + More

Conversion of Free Shipping Bills to Drawback Shipping Bills - Period of limitation - Monetary limit involved in the appeal - HELD THAT:- The Review Committee has put forward grounds challenging the Final order passed by the Tribunal dt. 30.09.2021 directing the adjudicating authority to verify and allow the conversion of shipping bills. When the order passed by the department denying the request for conversion has been set aside by the final order dt. 30.09.2021 passed by Tribunal, the only remedy available for the department is to file an appeal against such order before the Higher Forum. The Tribunal while passing the Final order has already taken into consideration the Board s circular as well as the decisions passed on the very same issue. The Commissioner has correctly followed the direction of the Tribunal and passed the impugne....... + More

Exemption from Customs Duty - import of Boron Ore - applicability of Sr.No. 130 of customs notification No. 15/2017-CUS dated 30.06.2017 - period from 26.12,2017 to 11.05.2020 - HELD THAT:- It is found that the eligibility of the exemption on import of Boron Ore was in dispute in many cases and a bunch of appeals have been disposed of by this Tribunal in the case of PRADIPKUMAR P PATEL VERSUS C.C., AHMEDABAD [ 2023 (1) TMI 1318 - CESTAT AHMEDABAD] , wherein the Tribunal has remanded the matter to the Adjudicating Authority. Since, in the above decision of this Tribunal identical issue that of in the present appeal is involved, it is in the interest of justice that the present matter may also be remanded and to be decided by passing a de-novo order by the Adjudicating Authority considering the observation made in the above decision. Appeals are allowed by way of remand to the Adjudicating Authority.

Levy of anti-dumping duty on the imports of MEG from Kuwait, Saudi Arabia and United States of America (subject countries) - Validity of Notification dated 27.10.2022 - domestic industry suffered material injury in terms of the provisions contained in the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 or not - HELD THAT:- It can be seen that there has been a significant increase in imports from the subject country in the period of investigation, in excess of the demand supply gap. Further, since financial year 2019-20, the imports have started coming at dumped prices and the landed value of such imports has been even below the raw material prices. Thus, evidently there has been a significant increase in dumped imports from financial year 201....... + More

Refund of the value of the goods that were seized and confiscated - Auction of goods by the Customs Department - the order of seizure were set aside - petitioner claims for a refund of the complete value of the goods and not the value as per the auction - HELD THAT:- No material is placed by the petitioner before the Court to arrive at any conclusion that the estimated value stated in the order of seizure is also a determined value of the goods at the time of its seizure. As it is the petitioner who had procured the goods which were seized and confiscated and later on put up on auction, he would be the best person to have the knowledge about the actual value of the goods as it may have been. The same would also be in conformity with provision of Section 106 of the Indian Evidence Act, 1872. But as a dispute has been raised by the petit....... + More

Validity of provisional assessment order - direction to execute bond and furnish bank guarantee for release of the goods imported by the petitioner - Violation of Customs Act or not - HELD THAT:- The order impugned cannot be said to be without jurisdiction even if the order can be said to be against some provisions of the law. When there is provision of appeal, this Court would not assume the jurisdiction of the Appellate Authority on the ground that the order passed by the Assessing Authority is against the law. If the order impugned is not without jurisdiction or it is not in violation of the principles of natural justice, this Court would not entertain the writ petition merely on the ground that in the opinion of the petitioner, the order runs contrary to some provision of the Customs Act, 1962. The petitioner is permitted to fil....... + More

Seeking grant of anticipatory bail - bar of Section 82 Cr.P.C. - proclamation issued under Section 82 Cr.P.C. to be published in the manner prescribed under sub Section (2) of Section 82 Cr.P.C. - smuggling of contraband goods of foreign origin like gold - non-cognizable and bailable offence - HELD THAT:- There is nothing on record to indicate that the steps mentioned in sub section (2) and (3) of Section 82 Cr.P.C. have been taken in the present case. Therefore, the proclamation issued under Section 82 (1) Cr.P.C. had not been published in the manner provided under sub Section (3) of Section 82 Cr.P.C. No further statement was signed by the Court as provided in sub Section (3) of Section 82 Cr.P.C. There is no bar against the application for anticipatory bail being considered by this Court on its merits, hence, the merits of the prese....... + More

Redemption for the purpose of Re-export - Absolute Confiscation - Gold bars - goods are not available for redemption and re-export as the Customs Authority already disposed off the gold bars - HELD THAT:- It is admitted that before this order came to be passed on 30.11.2018 in Ext.P10, the Customs has already disposed of seized two gold bars of the petitioner. Therefore, the direction issued by the Principal Commissioner in Ext.P10 order for redemption for the purpose of re-export the gold on payment of redemption fine of Rs.25,00,000/- and reduced penalty of Rs.8,00,000/- are impossible to comply with inasmuch as the goods are not available for redemption and re-export. This fact of disposal of the two gold bars by the Customs Authority was not before the Principal Commissioner Ex-Officio, Additional Secretary to Government of India....... + More

Validity of a Seizure Memo and SCN - respondents have called upon the petitioner to show cause why the gold jewellery and ornaments weighing approximately 20,756 grams should not be confiscated - HELD THAT:- On a holistic consideration of the SCN, the contention cannot be accepted that the same is a manifestation of a predisposed state of mind of the respondents - also it is a well settled principle that courts should desist from entertaining challenges to SCNs and interference being warranted only in exceptional circumstances and where it be found that the same is questioned on jurisdictional grounds. The challenge as mounted in terms of the instant writ petition clearly fails to meet the aforesaid tests as formulated. The challenge laid to the impugned SCN is negativated - the writ petition is disposed off by observing that the competent authority shall endeavour to dispose of and conclude the SCN proceedings within a period of two months from today.

Levy of ADD - import of horizonal plastic injection moulding machines in the guise of parts and components - rejection declared classification of the imported goods under CTI 8477 9000 / 7318 1100 - to be classified under CTI 8477 1000 for the purpose of assessment and levy of ADD or not - HELD THAT:- In the case in hand, the imported goods were not presented by the appellant in un-assembled condition as alleged by the department for the purposes of convenience of packing or handling or transportation. Rather, the post importation activities do not merely involve assembly of the imported goods, but involved procurement of the essential components/parts for ultimate manufacture of PIMM in India, the facts of which have also been endorsed by the Chartered Engineers in their respective certificates (referred supra). The process involved....... + More

Principles of natural justice - impugned complaint for the alleged commission of the offences punishable under Sections 135(1)(a), 135(1)(b) and 135(1)(c) read with 135(1)(i)(A) of the Customs Act, 1962, passed in a mechanical manner, without observing any reasons - summoning order passed without giving any reasons for the same - HELD THAT:- Considering the contentions raised by the learned senior counsel appearing for the petitioner, especially the fact that the summoning order has been passed without giving any reasons for the same, this Court is of the opinion that prima facie, the matter requires consideration. Further, in the opinion of this Court, considering that the petitioner has been exonerated by the learned CESTAT on the same set of facts and this fact has not been disclosed before the learned Trial Court, the petitioner....... + More

Appointment of Arbitrator to adjudicate the dispute between the petitioner and the respondents - clause 26 of the e-bidding-cum-e-auction bidding process - Auction of unclaimed imported consignments on behalf of Customs department - HELD THAT:- Prima facie, the respondents are governed by the terms of Handling of Cargo in Customs Areas Regulations, 2009. In terms of Section 48 of the Customs Act, 1962, if any goods are brought into India from a place outside India and are not cleared for home consumption or warehoused or transhipped within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person h....... + More

Valuation of imported goods - undervaluation - Urea - Ammonia - Influence on import price due to the alleged relationship or not - relationship between OMIFCO (the exporter of the goods situated outside India) and KRIBHCO (importer in India/Appellant), exists or not - demand of differential duty with penalty - HELD THAT:- The issue is no longer res integra and the same has been adjudicated by the Coordinate Bench in the Appellant s own case INDIAN FARMERS FERTILIZERS CO OPERATIVE LIMITED, KRISHAK BHARTI COOPERATIVE LIMITED VERSUS C.C. -KANDLA AND C.C (PRV.) , JAMNAGAR VERSUS INDIAN FARMERS FERTILIZERS CO OPERATIVE LIMITED [ 2023 (1) TMI 155 - CESTAT AHMEDABAD] where it was held that The alleged relationship between the Appellants/ GOI and OMIFCO has not influenced the price of the imported goods. The impugned order set aside - appeal allowed.

Recovery of outstanding government dues - present respondent company has undergone the proceedings under insolvency and bankruptcy code - company has been taken over by some other company - HELD THAT:- It can be seen that all the government dues stand extinguished as per the resolution approved by the NCLT vide order dated 01.07.2022, therefore, there is no purpose even to proceed with the present appeals by the department. Accordingly, in our view, the Revenue s appeals became infructuous. The appeals are dismissed as infructuous.

Valuation - Rejection of Transaction value - Demand of differential Customs Duty - finalisation of assessment of shipping bill - whether the price adopted for finalisation at the rate of US$101.43 PDMT, instead of the contract value of the export goods is justified? HELD THAT:- The transaction value have been rejected mainly on the basis of some confusion arising from the BRC, which referred to 4 shipping bills for the total quantity of 30,000 WMT. Accordingly, there was difference noted by the Customs Officer with regard to the quantity exported. According to the said invoice No. 355/2009 10 dated 14.01.2010, total quantity exported was only 25,924 WMT. It is found that there is no basis except assumption and presumption for drawing adverse inference on this account - further there is no evidence that the Appellant have received....... + More

Absolute Confiscation with an option to re-export the goods within 45 days - levy of penalty - import of 42.410 MTs of goods declared as UBC aluminium - permission from the Ministry of Environment and Forests not obtained - HELD THAT:- From the grounds of appeal, It is seen that appellant is not denying that the goods in question were plastic waste only. They have not made any submission to the effect that they have obtained any permission to import the same. In fact they have made a request that since the goods in question cannot be re-exported, they should be allowed to destroy the material under such conditions and restrictions as may be imposed by the Customs Authorities in consultation with the Pollution Control laws as applicable in India. This request from their side shows that they were fully aware that the goods in question we....... + More

Levy of penalty - delay of 5-6 days in filing of EGM from the date of sailing of the ships - Delay in issue of issue / uploading of Sailing Reports by the Customs officers - reasonable cause for delay or not - Non-fulfilment of condition specified under Section 41 of the Customs Act 1962 - HELD THAT:- It is seen from the Order-in-Original and Order-in-Appeal that the Appellant has properly canvassed before both the authorities that the initial issue of Sailing Reports manually was delayed and subsequent delay in uploading the same in EDI system by the Department has resulted in the delay in filing of EGM by the Appellant. Both the authorities have not given any consideration nor have they brought in any other evidence to suggest that the Appellants submissions were not true. Much bigger issue was before the Chennai Tribunal in t....... + More

Computation of period for filing appeal as time granted by the High Court - whether the word today mentioned in the order passed by the Hon'ble Division Bench refers to the date on which the order was passed or to the date on which the order was issued to the petitioner (i.e., the date on which the order was made ready)? - Appeal dismissed on the ground of time limitation HELD THAT:- This Court is of the considered view that the petitioner will be able to file the appeal only when the order copy is received by them, otherwise, the respondent will not entertain the appeal. Therefore, for all practical purposes, the word today in the order passed by the Hon'ble Division Bench has to be construed as the date on which the order was ready to issue. In such view of the matter, the word today mentioned in the said ord....... + More

Revocation of Customs Broker License - at the given premises the said firm was found to be non-existent - non-adherence to the prescriptions concerning KYC norms - HELD THAT:- There are absolutely no merit in the plea of the Department alleging failure on the part of the appellant for meeting out their obligations in fulfilment of the KYC requirements. The inherent contradiction made by the Department is self evident, when the department with all the wherewithal at its command, itself fails to take note of the alleged non-existent address, it cannot shoot off the blame for a similar lapse, if any, onto the Customs Broker. It is opined that no action as initiated in the present matter, was made out in the first place. The order of the adjudicating authority is certainly without a toehold of legitimacy and therefore, needs to be set aside. The order of revocation of Customs Broker Licence is set aside and the same is restored - appeal allowed.

Refund of SAD - certificate issued by the Chartered Accountant was not authentic - principles of unjust enrichment - HELD THAT:- It is found that identical issue came up before this Tribunal in the case of M/S. SKYLARK OFFICE MACHINES VERSUS COMMISSIONER OF CUSTOMS (PORT) , KOLKATA [ 2023 (11) TMI 877 - CESTAT KOLKATA] , wherein this Tribunal observed On perusal of records, we find that no ulterior motive of the appellant towards production of the earlier certificate has been proved. They have produced a fresh Chartered Accountant s Certificate dated 06.10.2023. Therefore, following the ratio of the cited case law, we remand the matter to the adjudicating authority. As on the identical facts, this Tribunal has remanded the matter back to the adjudicating authority, observing that no ulterior motive of the appellant towards produc....... + More

Discharge of education cess and secondary higher education cess that had been debited against scrip issued under the Merchandise Exports from India Scheme (MEIS) in the Foreign Trade Policy (FTP) - HELD THAT:- In terms of the decision of Hon ble High Court of Bombay in LA TIM METAL INDUSTRIES LIMITED VERSUS THE UNION OF INDIA AND ORS. [ 2022 (11) TMI 1099 - BOMBAY HIGH COURT ], it would appear that the proposal for recovery itself was flawed inasmuch as any cess collectible as percentage of duty liability, and which is exempted thereof under any notification, could not be computed in the absence of any duty liability. It is also on record that circular no. 3/2022 dated 1st February 2022 of Central Broad of Indirect Taxes Customs (CBIC) relates to social welfare surcharge and it is quite likely that lack of specific refe....... + More

Oppression and mismanagement - Reduction of shareholding of the Appellant No. 1 - sale of properties of the Respondent NO. 1 Company without the consent of the Appellant No. 1 - jurisdictional error - mutual settlement of disputes between parties - HELD THAT:- The Tribunal passed the impugned order after duly considering that the jurisdiction of the Tribunal cannot be invoked for giving effect to a compromise between the parties. The impugned order does not suffer from any jurisdictional error and the Tribunal, by passing of the impugned order, ensured that there is no multiplicity of proceedings between the parties. The Tribunal comprehensively dealt with the issues mentioned in the Company Petition. The impugned order was passed on the ground that the parties had already mutually settled their disputes. In view of the mutual settleme....... + More

Seeking for restoration of the name of the Company Garg Medical Solutions Private Limited in the register maintained by the Registrar of Companies (RoC) - HELD THAT:- The said Company was struck off on 08.08.2018. The Appellant had complied with the statutory filing for the Financial Year 2016-17 and statutory filing for Financial Year 2017-18 was not due. The said Company had outstanding payable to three Creditor totalling to Rs.21 Lakhs/-. The said Company is also owing one Immovable Property. In Calcutta Rubber Factory Pvt. Ltd. Ors. Vs. Registrar of Companies, Delhi and Haryana, 2019 [ 2019 (12) TMI 342 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI ] it was held that restoration of the Company was considered just and equitable on the grounds that the Company is having Assets. In the present case, the Company had compl....... + More

Refusal of registration of shares of the Respondents - ambit of Section 111A of Companies Act - sufficient cause for refusal to register shares or not - NCLAT directed the appellant to register the shares of respondents - HELD THAT:- The interpretation of the expression sufficient cause in the context of refusal by a Company to register shares has to be pragmatic, reasonable and in consonance with the purpose of the legislation. Moreover, it has to be kept in mind that the legislature deliberately used the expression sufficient cause in proviso to Section 111A (2) as against the expression contravention of any of the provision of law used in proviso to Section 111A (3) of the Companies Act, 1956. In the opinion of the Court, the import of the expression sufficient cause cannot be reduced to mean only violation or contraventi....... + More

Transfer of pending proceeding to NCLT - substitution of ICICI Ltd to Edelweiss - HELD THAT:- A conjoint reading of Rule 5 of the notification dated 7th December, 2016 along with the decision in Citicorp International Limited v. Shiv-Vani Oil Gas Exploration Services Limited [ 2023 (7) TMI 1188 - DELHI HIGH COURT ] would show that in cases where the petition is not at an advanced stage, the matter is to be transferred to the NCLT. In the present petitions, apart from issuance of notice, no steps have been taken. None appear for the parties as well. Accordingly, the present petitions are directed to be transferred to the NCLT. List before the NCLT on 1st November 2023 - petition allowed.

Seeking transfer of winding up proceedings to National Company Law Tribunal (NCLT) - HELD THAT:- The said issue of transfer of pending cases has also been considered by this Court in Citicorp International Limited v. Shiv-Vani Oil Gas Exploration Services Limited [ 2023 (7) TMI 1188 - DELHI HIGH COURT ] wherein the Court relying on the decision of the Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT ] has held that It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. A conjoint reading of Ru....... + More

Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- Clearly, the winding up petition is at a nascent stage and no proceedings have been taken after the issuance of notice in these petitions. Only pleadings have been completed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 2013. The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT ], has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Compa....... + More

Re transfer of shares on account of non fulfillment of MoU by Arcadia - whether the Arcadia can be restrained from taking any decision which will hamper the interest of Hexogon while protecting their right to two mortgaged flats? Grievance is when the full amount is not advanced, the transfer of shares of defendant nos. 5 and 6 are ineffective. HELD THAT:- The law is well settled in case of Life Insurance Corporation of India [ 1985 (12) TMI 289 - SUPREME COURT] and it is reiterated by the Division bench of this Court in case of Invesco Developing Markets Fund and Ors. [ 2022 (3) TMI 1175 - BOMBAY HIGH COURT] . Court cannot restrain holding of any Extra Ordinary General meeting. There are only certain exceptions, where Court can interfere and it can be only when procedural and numerical requirements are not fulfilled. The Div....... + More

Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- The petition was filed some time in 2015 and since then, the pleadings have been completed in the matter. However, no further orders have been passed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 1956. The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT] , has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT). ....... + More

Professional Misconduct - Chartered Accountant (CA) - Lapses in evaluation of writing-back of liabilities - Failure in evaluation and attendance at physical verification of Inventory - Inappropriate reporting of matters through KAM - Forming inappropriate Audit Opinion - Non-evaluation of utilisation of IPO proceeds - Non-evaluation of Related Parties Transactions - Non-implementation of Quality Control Measures - Failure on the part of audit firm - Penalties and sanctions. Lapses in evaluation of writing-back of liabilities - HELD THAT:- It is expected that the Auditors would show a high level of professional skepticism and be alert to the possibility of mis-statement if restrained by the management from obtaining external confirmations, which is an essential component of independent audit. The Auditors should not only have re-as....... + More

Failure to get its cost accounting records to be audited by a Cost Auditor and failed to file Cost Audit Report to the Central Government - time limitation for filing such reports - violation of Section 148(8) of Companies Act, 2013 - HELD THAT:- According to the notice sent by the Registrar of Companies, it was observed from the records of the accused company that the cost audit report was not filed with the Central Government for the financial year ending 31.03.2014 within the stipulated time. The period of limitation is dealt under Code of Criminal Procedure under Section 468 to 473. Admittedly, punishment prescribed under the Section 147 of the Companies Act is one year in the present facts of the case. Accordingly, under Section 468 of Cr.P.C, the period of limitation for an offence punishable is one year under Section 468(2)(b....... + More

Scope of an asset and security freeze order - assignment or not - documents executed by IL FS by which rents were made over to the respondent, Housing Development Finance Corporation Ltd (HDFC or the lender) - HELD THAT:- The Lease Rental Discounting (LRD) arrangement - a new kind of financial agreement by which a banker allows credit facilities to a commercial property owner, has the flexibility of ensuring that the asset owner is given access to credit. The dominant condition is that a substantial portion or the entire rent or receivables which the owner would be entitled to are made- sold or assigned, absolutely to the creditor bank. This is with the intention that the borrower s liabilities are discharged automatically from the proceeds payable in respect of the property. Such amounts virtually are by way of unsecured debts. In oth....... + More

Prayer for recall of the order dated 21.08.2023 - by order dated 21.08.2023, Appeals filed by the Appellant were dismissed on the ground of delay in filing the Appeals - HELD THAT:- When the Appellants themselves filed an application which was also disposed of by this Tribunal on 14.02.2023, they cannot be heard to say that they are not served the order. Thus, as per Section 421, Appeals were barred by limitation. In the judgment of Sagufa Ahmed [ 2020 (9) TMI 713 - SUPREME COURT] , it was held that till the free of cost copy is not supplied, the limitation will not commence. In the said case, the certified copy was also applied and then the Court held that when certified copy is applied, the claim on the basis of that till the free of cost copy is received limitation will not run, was rejected. The said judgment does not in any man....... + More

Grant of Interim Order - stay order on the implementation of the resolutions approved in the EGM - balance of convenience. Whether the Appellants were able to make out a case in their favour for interim order regarding the EGM dated 3.5.2019, and since the EGM took place on 3.5.2019, for granting stay order on the implementation of the resolutions approved in the EGM? HELD THAT:- It is clear from the ad-interim injunction given by NCLT vide order dated 18.11.2016 that EGM dated 21.11.2016 was allowed to be conducted to discuss only the ordinary business of Orbit Electricals and to only take necessary steps connected with statutory compliances required to be made urgently. Further, Orbit Electricals and other Respondents were restrained from not alienating the moveable assets as listed in the agenda of EGM scheduled to be held o....... + More

Condonation of delay in both re-filing and filing of the Appeal - Notice was never received by the Applicant / Appellant herein - ex-parte Order was passed on merits. It is the contention of the Learned Counsel for the Applicant / Appellant that having been set ex-parte before the Adjudicating Authority, they were unaware of the Order till 03/10/2022 when the IRP had sent communication of the same, the Appeal could not be filed within the statutory limit of 30 days, and there was a delay of 15 days from the date of the Impugned Order. HELD THAT:- The Hon ble Supreme Court in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS [ 2015 (1) TMI 1053 - SUPREME COURT] has clearly laid down that an Application for condonation of delay should not be dealt with, in a routine manner on the base of indivi....... + More

Principles of natural justice - opportunity of hearing not provided to the Appellant - non-speaking order - Appellant was restrained from disturbing the possession of the Respondent No.1 - HELD THAT:- Basis the appeal and also the written and oral submissions of Appellant and Respondents, it emerges that Apparently the appellant was not given any opportunity to file reply and in the very first hearing interim orders were issued on 04.07.2023. The impugned judgment and order passed by the Adjudicating Authority is quashed and set aside. The matter is remitted back to the Adjudicating Authority to look into all the aspects before passing any order in accordance with law - Appeal allowed.

Violation of principles of natural justice - Petition for Oppression and Mismanagement dismissed as withdrawn without furnishing any reasons for denying liberty - HELD THAT:- When a civil suit , is filed, all the provisions of the Civil Procedure Code , 1908 will apply, pertaining to the conduct of the proceedings before Court . However, in respect of proceedings filed under the Companies Act, 2013 , the procedure, to be followed, shall be as specified in the Rules - As a matter of fact, any order, passed by the Tribunal / Appellate Tribunal, shall be enforced as a Decree , passed by the Court . The fetters of Civil Procedure Code , are not binding on the Tribunal , and the Appellate Tribunal , but they are guided by the Principles of Natural Justice . The power to grant permission to withdraw a suit with Liberty t....... + More

Sanction of composite scheme of amalgamation - locus Standi to challenge the Impugned Order - HELD THAT:- There is no mandatory requirement under the Companies Act, 2013 to conduct a meeting of secured and unsecured creditors if an arrangement or compromise is not envisaged with them. Hence, as per the provisions of the Companies Act, 2013, there was no necessity of either conducting a meeting of the unsecured creditors of Respondents, or of obtaining consent affidavits from the unsecured creditors of the Respondents before dispensing with the meeting of unsecured creditors. Since, both the Appeals fails on the account of locus itself and do not meet the minimum threshold of 10% shareholding and 5% of the total outstanding debts as per latest Auditors Financial Statement (in the relevant period at that time), it is not required to go into details of other issues. Appeal dismissed.

Recall of final Order/Judgement dated 31.07.2023 and Order dated 19.07.2023 - It is strongly contended by the Learned Sr. Counsel that the Order dated 19.07.2023 wrongly notes that both these Appeals were heard at length and Judgements were reserved and parties were directed to file their Additional Written Submissions - existence of element of fraud or not - HELD THAT:- The grounds on which a Tribunal or a Court can recall the Order has been clearly laid down - there is no element of fraud or collusion ; that this Tribunal did not commit any mistake or prejudice any party or has acted outside its jurisdiction On adhering to Principle of Natural Justice, and therefore, it is held that the power to recall our Orders/Judgements dated 19.07.2023 and 31.07.2023 ought not to be exercised in the facts of the attendant matter on hand. Application dismissed.

Oppression and mismanagement - Determination of minimum shareholding for filing complain / petition against the company - NCLT rejected the petition - the impugned order, was passed by Hon ble Member (Judicial) of the Tribunal , sitting singly, in the absence of the Hon ble Member (Technical). Failure to possess requisite Shareholding necessary to maintain the underlying petition - appellant possessed 19.83% shareholding in the 1st Respondent / Company, at the time of filing the present petition - conduct in breach of the fiduciary duties of Directors owed towards 1st Respondent / Company as per Section 166 of the Companies Act, 2013. Appellant contends that the Tribunal had committed an error, in coming to the conclusion that the shareholding at the time of accruing of cause of action, would be determinative, of the maintaina....... + More

Professional Misconduct - Acceptance of audit engagement without valid authorization and without complying with ethical requirements; and issuing an audit report in violation of the Act - Failure to comply with Standards on Auditing (SAs) - penalties and sanctions - HELD THAT:- Given the actions and omissions, it is established that CA Aabhas Tiwari did not comply with the stipulations in the Chartered Accountants Act, 1949 regarding the acceptance of the statutory audit engagement and showed gross negligence and lack of due diligence while accepting an invalid appointment as auditor. In addition to accepting a legally invalid appointment, the EP also did not ensure the audit quality. The EP was grossly negligent in performing his professional duties by not adhering to the requirements laid down by the relevant SAs. This has led to the....... + More

Contempt petition - CIRP proceedings - Preferential, undervalued, extortionate, fraudulent or wrongful trading - Pre-mature application or not - whether the Business Service Agreement (BSA) is valid and legal for which the Resolution Professional is cognizant and has initiated the Transaction Review Audit of various transaction to ascertain, whether any transaction fall under the ambit of preferential, undervalued, extortionate, fraudulent or wrongful trading under the provision of the Code? - HELD THAT:- Taking into consideration the entire facts and circumstances prevailing at the time when the application was filed and at the time the order was passed that when the application was filed a serious question was raised about the legality and validity of BSA and the Adjudicating Authority was of the view that RP has already initiated tr....... + More

Approval of Resolution Plan - Plan providing for extinguishment of security interest and the guarantees of the Financial Creditors including dissenting Financial Creditors - payment, proposed to the dissenting Financial Creditors in the Resolution Plan - contrary to the provision of Section 30, sub-section (2) and the CIRP Regulations or not. Whether Resolution Plan providing for extinguishment of security interest and the guarantees of the Financial Creditors including dissenting Financial Creditors is contrary to the provision of Section 30, sub-section (2) and the CIRP Regulations? - HELD THAT:- The present is a case where CoC deliberated over the issue and on such deliberation and inputs, the Successful Resolution Applicant submitted revised Resolution Plan and the Resolution Plan dealt with security interest and the personal ....... + More

Seeking a direction under Section 60 (5) of the Code to declare the Appellant as the Financial Creditor and include the Appellant s name in the list of Creditors of the Corporate Debtor. It is the case of the Respondent / RP of the Corporate Debtor Company that the Appeal is barred by the principle of Res Judicata as initially ARCIL had challenged the Order, on the ground that the Appellant is not a Financial Creditor. HE;D THAT:- While allowing C.A. (AT) (Ins) 633/2018, this Tribunal noted that there is a dispute as to whether Mahal Hotel Pvt. Ltd. comes within the meaning of Financial Creditor or not, and has concluded that further, once a decision was taken by the Committee of Creditors to call for a Meeting for removal of Mr. Koteswara Rao Karuchola as RP, it was improper for him to include Mahal Hotel Pvt. Ltd. as Finan....... + More

Section 9 Application not admitted - pre-existing dispute between the parties - Disputed reply to the notice - HELD THAT:- The Appellant submits that the Reply to the Demand Notice was not correct reply and it was duly explained in the Rejoinder by Corporate Debtor - On looking into the Reply to the Demand Notice, the notice is clearly notice of dispute. When the Corporate Debtor immediately after first design was submitted said that it was not complete and refund of Rs.3 Lakhs was claimed, the dispute was raised immediately after 31.07.2019, which was much prior to the Demand Notice. The averments made in the Reply to Demand Notice clearly indicate that dispute was raised which cannot be a moonshine or not supported by any material. The Adjudicating Authority did not commit any error in rejecting Section 9 application on the ground of pre-existing dispute - there is no merit in the Appeal - appeal dismissed.

Approval of Resolution Plan - NCLAT / NCLT kept the application pending - Application seeking approval of a Resolution Plan for ACIL Limited (ACIL or Corporate Debtor) was kept in abeyance while directing the Official Liquidator (OL) to carry out a re-valuation of the assets of the Corporate Debtor and to provide exact figures/value of the assets and exact valuation details - HELD THAT:- In the case at hand, there was no occasion before the Adjudicating Authority- NCLT to be swayed only on the per se ground that the hair-cut would be about 94.25% and that it was not convinced that the fair value of the assets have been projected in proper manner as the bid of the appellant was very close to the fair value of the assets of ACIL. Ordering revaluation of the assets, by the OL, Ministry of Corporate Affairs, Government of India, in-charge ....... + More

Right to get registered as RP - Rejection of application of the Petitioner herein for registration as a Resolution Professional - rejection on the ground that she is not a fit and proper person to be appointed as an Insolvency Professional - HELD THAT:- An Insolvency Professional performs very important functions in the insolvency resolution process of a company. An Insolvency Professional virtually takes over the company during the period it goes through the insolvency resolution process. An Insolvency Professional in fact becomes the heart and brain of the company under the insolvency resolution process and a person having slightest of disqualification cannot be permitted to be appointed as an Insolvency Professional otherwise the entire purpose of the IBC will get vitiated. Keeping in mind the functions and obligations of an Inso....... + More

Liquidation of Corporate Debtor - section 33 of IBC - HELD THAT:- It is an admitted fact that there was no Resolution Plan which was approved by the CoC, prior to the expiry of the CIRP Period and therefore, the Adjudicating Authority passed the Liquidation Order as mandated under Section 33 (2) of the Code. Having regard to the fact that the CIRP period of 270 days was over and the CoC had voted in favour of Liquidation of the Corporate Debtor Company with a 100 % majority, there are no substantial reasons in the argument of the Learned Counsel for the Appellant that their Plan ought to have been considered. The material on record establishes that Section 33 (1) (a) (i) and Section 33 (2) of the Code have been satisfied, IBC is a time bound process and the commercial wisdom of the CoC is to be given paramount importance for approval/r....... + More

Prayer for certain reliefs and concession consequent to going concern sale in the liquidation proceeding of Corporate Debtor - prayer to stay the e- Auction process/ sale process of the Corporate Debtor till fresh bids are invited for re-auction - direction to liquidator for maintenance of status quo - waterfall mechanism - HELD THAT:- Appellant, who was stakeholder of only 0.734% in the total value of stakeholders of the Corporate Debtor, was part of the Committee of Creditors and participated in the liquidation process by filing its claim, which was accepted. The Appellant has been distributed the proceeds of the liquidation as per the entitlement under Section 53 of the IBC. At no point of time, prior to holding of auction, i.e., 04.04.2022, any kind of objection was raised by the Appellant to the reserve price or against valuation ....... + More

Calculation of interest on revocation of settlement - whether the rate of interest applicable for determining the claim of the ARCIL in CIRP proceeding is 22% or the rate of interest has to be 14.85%? - HELD THAT:- The application filed by the ARCIL for amending the rate of interest as 22% from 14.85% was rejected by the DRT which order was also affirmed by the DRAT. Writ Petition was filed by ARCIL against the order passed by the DRAT and DRT rejecting the Amendment Application. In the said Writ Petition, the High Court expressed its opinion that Amendment Application which was filed by the ARCIL for 22% interest was based on the Sanction Letter dated 28.02.2011. The High Court observed that when the Sanction Letter was itself revoked on 17.06.2013, there is no question of enforcement of rate of interest of 22% by carrying out amendme....... + More

Seeking direction for rejection of Resolution Plan - sole financial creditor being related party to the Corporate Debtor - Appellant being under undue and coercive influence of Sunaina Singh which in turn purportedly vitiated the CIRP proceedings - Appellant not challenged the CIRP admission order or the constitution of CoC within 30 days from the date of the passing of the relevant orders by the Adjudicating Authority - challenging the order approving the resolution plan. With the previous adjudication of IA 344 of 2020; IA 728 of 2020 and in the light of the decision of this Tribunal in CA (AT) (Ins.) 1065 of 2021 dated 14.07.2022 upholding the constitution of CoC and this matter having attained finality, whether the issue of sole financial creditor being related party to the Corporate Debtor can be raised again at this stage? - ....... + More

Provision of IBC are overriding the provisions of SARFAESI or not - Recovery from the Personal Guarantor of a corporate debtor - Seeking to declare that the provisions of the Insolvency and Bankruptcy Code, 2016 shall have overriding effect over the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- When an application is filed under Section 94, an interim moratorium shall commence on the date of the application in respect to all the debts and shall cease to have effect on the date of admission of such application. Once an application for Insolvency Resolution Process is admitted, Section 101 will come into play and a moratorium will commence in relation to all the debts and shall cease to have effect at the end of the period of 180 days beginning with the date of adm....... + More

CIRP Proceedings - Outstand Tax Dues claimed before the liquidator - Petitioner challenged the Validity of assessment order - Official Liquidator was not heard while finalising the assessment - bar under Section 14 of the IBC - HELD THAT:- From perusal of Section 14 of the IBC and several Judgments of the other High Courts as well as the Supreme Court, it is well settled that Section 14 of the IBC does not create a bar for finalisation of the assessment and adjudication proceedings in respect of the taxes. On the resolution once the reference has been admitted, there is moratorium for recovery of the tax dues but, there is no bar for finalisation of the assessment and adjudication proceedings. On perusal of the impugned orders Exhibits P-7 to P- 10, it is evident that the petitioner was issued notice to which reply was filed and after ....... + More

Prayer for clarification of the judgment dated 11.09.2023 - Rejection of Section 7 application - HELD THAT:- The order dated 11.09.2023 does not preclude the Adjudicating Authority to consider the prayer of the Corporate Debtor if it is ready to pay the entire debt along with the interest to the Operational Creditor. It is open for the Adjudicating Authority to consider any such offer and if the entire debt is liquidated there may not be any necessity to admit Section 7 application. The Appellant submits that this application for clarification is not maintainable. The application is filed under Rule 11 of the NCLAT Rules, 2016, the application for clarification of the judgment can very well be entertained in exercise of power under Rule 11 and the submission of the Appellant that application is not maintainable cannot be accepted. Application disposed off.

Prayer for condonation of 103 days refiling delay - delay on the ground of change of the counsel on record - HELD THAT:- The earlier order dated 22.02.2023 passed in Appeal No.39 of 2021 was for deferring the hearing to 20.03.2023. There was no decision taken by the Adjudicating Authority regarding claim of the Respondent in the said order on merits - It is satisfying that the said order cannot be reason to say that the Adjudicating Authority could not have passed order on 10.05.2023. The order dated 10.05.2023 is not a review or modification of the earlier order as contended by learned counsel for the Appellant. Thus, there is no error in the order dated 10.05.2023 passed by the Adjudicating Authority issuing directions. Learned counsel for the Respondent submits that the order has not yet been complied by the Liquidator in which t....... + More

Initiation of CIRP against the Corporate Debtor - default on the part of the Corporate Debtor or not - no reply to demand notice - existence of pre-existing dispute or not - HELD THAT:- It is clear that the Adjudicating Authority gave all possible opportunities to the Corporate Debtor to present his case but the Corporate Debtor miserably failed to do so. Therefore, the allegations on this account by the Appellant herein are not sustainable - the notice under section 8 (1) of Code was duly served by the Respondent No. 1 upon Corporate Debtor on 23.07.2021 and the Corporate Debtor did not reply to the demand notice. It is observed that the Operational Creditor raised 44 invoices for the supply of Tire Cord Fabric to the Corporate Debtor, during 2018-2019 arising out of work order dated 06.04.2018, which remained unpaid by the Corpora....... + More

Condonation of delay of 15 days in filing of the present appeal - sufficient cause for delay present or not - Section 61(1), (2) and proviso to Section 61(2) of the Code - HELD THAT:- The above provisions have four parts (1) any person aggrieved by the order of the Adjudicating Authority shall have a right of an appeal to the Appellate Tribunal (2) time prescribed for filing such an appeal is 30 days (3) the period of 30 days is further extended to another 15 days but with a rider that the Applicant has to assign a sufficient cause, to the satisfaction of the Appellate Authority, for not filing the appeal within the period of 30 days and (4) the period of 15 days cannot further be extended. In the case of NATIONAL SPOT EXCHANGE LIMITED VERSUS MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED [ 2021 (9) TMI 1156 - SUPRE....... + More

Condonation of delay in filing appeal - sufficient cause for delay present or not - whether the delay of 46th day can be condoned by the Appellate Tribunal? - HELD THAT:- It is well settled that if the appeal is not filed within the period of limitation prescribed and a delay has occurred a right would vest in the other side and for the purposes of condonation of delay a plausible excuse much less sufficient cause has to be made which may satisfy the conscious of the Appellate Authority. In the present case, however, the appellant has given the reason that the appeal within 30 days (prescribed period) could not be filed and also till the last day of extended period (15th day) could not be filed i.e. after considering the entire period of 45 days, because the appellant was in consultation with its Counsel and internal management with re....... + More

Initiation of CIRP - Maintainability of joint application u/s 7 - separate corporate entities - sharing of Revenue - fulfilment of threshold as prescribed under the IBC or not - existence of financial debt against each applicant or not - time limitation. Whether the joint application under Section 7 against Anand Infoedge Pvt. Ltd. , Mist Avenue and Mist Direct is maintainable? Three Respondents- Appellants herein being separate corporate entities? - HELD THAT:- It is clear that all the three Appellants i.e. Anand Infoedge Pvt. Ltd., Mist Direct Sales Pvt. Ltd. and Mist Avenue Pvt. Ltd. are intrinsically interwoven with the project in question i.e. Festival City in which the Respondents allottees were allotted units. Collaborator No. 1 and 2 are part of project who were entrusted with the development and sale of units. It was....... + More

Initiation of CIRP - NCLT admitted the application u/s 7 - period of limitation - case is that Section 7 application which was filed after 18 years in October 2019 was way beyond the prescribed limitation period of 3 years under Section 18 of the Limitation Act, 1963 and thus the petition stood barred by limitation. HELD THAT:- The law is well settled that for finding out acknowledgement within the meaning of Section 18 of the Limitation Act, balance sheets can be looked into. Hon ble Supreme Court in Bishal [ 2021 (4) TMI 753 - SUPREME COURT] has extensively examined the question in reference to Section 18 of the Limitation Act and upheld the consideration of balance sheets as a valid acknowledgment of debts but also observed that it would depend on the facts of each case as to whether an entry made in a balance sheet qua, any par....... + More

Approval of Resolution Plan - waterfall mechanism - HELD THAT:- The claim filed by the Appellant was as Operational Creditor and it is not shown that Operational Creditor was entitled for any more amount as per Section 30(2)(e) under which the Operational Creditor is entitled for the amount equivalent to the amount which could have been paid to the Operational Creditor in event of liquidation as per waterfall mechanism under Section 53. In judgment of this Tribunal in in Department of State Tax, Through the Dy. Commissioner of State Tax vs. Zicom Saas Pvt. Ltd. Anr. [ 2023 (2) TMI 1170 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] , the submission on the basis of Rainbow Paper was considered and repelled and it was held that The Appellant having been treated as Operational Creditor allocation of amount in the Resolutio....... + More

Seeking permission to withdraw the present special leave petition - HELD THAT:- In view of the statement made, the special leave petition is dismissed as withdrawn.

Money laundering - predicate offence - some of the FIRs are compromised, while the scheduled offence continues to exist - HELD THAT:- In the present case, the two FIRs, i.e., FIR No. 16/2018 dated 24.01.2018 and FIR No. 49/2021 dated 12.03.2021 registered at PS EOW, have been compounded and quashed, respectively, on the ground of compromise. It is pertinent to note that the State has not challenged the aforesaid orders on the ground that the matter was not settled with all the complainants. It is also noted that the remaining complainants, if any, have also not challenged the aforesaid orders on the ground that settlement was not arrived at with them. It is pertinent to note that the aforesaid FIRs were registered at the instance of investors who were aggrieved by the non-completion of a project by the company. A perusal of the afor....... + More

Seeking ex-parte ad-interim stay of the proceeding - applicant/petitioner submit that the proceedings in the said ECIR ought to be stayed against the petitioner as the predicate offence for the said ECIR are the proceedings under Section 135 of the Customs Act, 1962 which has already been stayed by this Court - HELD THAT:- A perusal of the Provisional Attachment Order No.06/2023 dated 03.11.2023 issued by the Deputy Director, ED, particularly the material placed before the Authority (para 2(i)) and the cause of action under the PMLA (para 4.1) reveals that the present ECIR dated 17.07.2023 was recorded by the respondent ED, as Section 135 of the Customs Act, 1962 is a scheduled offence under the PMLA, whereunder the complaint was registered for the illicit export of foreign currency. The facts also reveal that dismissal of the adjud....... + More

Money Laundering - continuation of ECIR instituted under the PMLA against the petitioner - petitioner stands acquitted of the charges in a duly constituted criminal trial of the allegations of committing the predicate offence - HELD THAT:- The Hon ble Supreme Court in VIJAY MADANLAL CHOUDHARY ORS. VERSUS UNION OF INDIA ORS. [ 2022 (7) TMI 1316 - SUPREME COURT] has clearly observed that such property which is derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence can be recorded as proceeds of crime but the authorities under the 2002 Act cannot resort to action against any person for Money Laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed unless the same is registered with the jurisdictional p....... + More

Money Laundering - interpretation of statute - Certainty of the Special Designated Court to try the scheduled offence - provisions of Section 44(1)(c) of PMLA, 2002 - language of the statute mandatorily direct that the transfer of the case under the schedule offence to the Special Court is automatic or not - HELD THAT:- A conjoint reading of Section 44(1)(a), Section 44(1)(c) along with Explanations (i) to the Section 44(1) makes it abundantly clear that the legislative intention was that one and same Court would try both the offences and the Special Designated Court being vested with the Sessions power for dealing with offences under PMLA would try such offence. Further the subject matter of transactions being same along with the factual foundation and the outcome in trial of the Scheduled offence having an impact in respect of the of....... + More

Money Laundering - Scheduled offences - seeking grant of bail - twin conditions for the grant of bail contained in Section 45(1) of PMLA satisfied or not - HELD THAT:- It is trite that the court while considering an application seeking bail, is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, the court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witness being tampered with, the larger interests of the public/State etc. Though, the findings recorded by the Court while granting or re....... + More

Money Laundering - seeking grant of bail - bogus product bookings - conditions specified under Section 45 of the Prevention of Money Laundering Act, 2002 satisfied or not - HELD THAT:- In the present case, it is pertinent to mention here that the trial of both CBI case and ECIR lodged by Enforcement Directorate have been clubbed. Since charge sheet has already been submitted and documents have already been seized, there is no chance of tampering evidence. The petitioner was cooperative during investigation and never misused his liberty of not being arrested during investigation. It is also mentioned here that the petitioner is a permanent resident of his locality, having his family members and ancestral property. Therefore, there is no scope for his absconding, if enlarged on bail. The petitioner is a blind person. This fact has bee....... + More

Rejection of Bail application - Money Laundering - proceeds of crime - sale of property and receipt of cash - reliability of statement recorded under Section 50 of the PMLA, 2002 - burden of proof to prove non-involvement in the crime of money laundering - requirements under Section 45 of the PML Act, 2002 complied or not - HELD THAT:- It is necessary for the applicant to prima facie establish that he is not involved in the commission of offence under the PMLA, 2002 to enlarge on bail, therefore, this Court is now considering the factual matrix as projected by the applicant and the respondent to substantiate their respective stands. The submission made by learned Senior counsel for the applicant that the applicant has sold the property to Smt. Shanti Devi Chaurasia for consideration of Rs. 2.53 crore through registered sale-deed and....... + More

Seeking grant of anticipatory bail - Money Laundering - active member of extortion syndicate - transaction of cash money - non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002 or not - twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available or not. Whether non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002? - HELD THAT:- Considering the fact that as per Section 19 of the PMLA, 2002, it is for the authority who on the basis of material in their possession, and reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person. The authorities while conducting the investigati....... + More

Money Laundering - scheduled/predicate offence - illegal excavation and theft of coal from the leasehold area of ECL - main grievance of the petitioner is that he has been repeatedly summoned by the Directorate of Enforcement directing him to appear for questioning at the New Delhi office in connection with present ECIR, though he resides in Kolkata, West Bengal and the respondent has a zonal office in Kolkata. HELD THAT:- It is apparent from the reading of Section 50 of PMLA as well as decision in Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT ] that the power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon any person whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The persons so....... + More

Maintainability of Revision petition - impugned order is an interlocutory order - Allowing release of property in lieu of fixed deposit - Money Laundering - HELD THAT:- On going through the analysis in entirety, it is explicitly evident that the order passed by the Courts regarding handing over the custody of property would be considered as final order since they are finally adjudging the possession of the property. However, when the order is challenged on the basis of violation of law, without applying proper procedure and passed without jurisdiction, the revision certainly lies. Accordingly, the contentions of respondents regarding non-maintainability of this revision deserves to be and is dismissed. The learned Special Judge, in impugned order, has not mentioned anything with regard to the said manner specified in the Rules 3 and....... + More

Money Laundering - case has been registered in continuation of a predicate offence which is registered for offence under Sections 120-B, 406 and 420 of IPC - It is contended by the petitioner that an offence under 2002 Act, cannot be dealt with before the scheduled offences have been tried and proved - HELD THAT:- In the present case, the petitioner himself has admitted his acquaintance with the 1st accused. The FIR in the predicate offence may not of course reveal the involvement of the petitioner. However, the statement obtained from the witnesses who were examined in connection with the predicate offence would show how the petitioner was introduced to the bank officials as person who is the authorised signatory of the business concern of the 1st accused. Though the learned counsel for the petitioner pointed out that the petitione....... + More

Seeking grant of bail - Money Laundering - predicate offence - taking bribes, illegal commissions and unaccounted monies etc. in the State of Chhattisgarh - discharge of burden to prove - admissibility of statement under Section 50 of the PMLA - twin conditions under Section 45 of the PMLA, satisfied or not - HELD THAT:- On going through the statements recorded in various cases of Arunpati Tripathi and Vidhu Gupta wherein role of Arunpati Tripathi has been stated and specially in the statement of Vidhu Gupta the role of Arunpathi Tripathi has been elaborated. Likewise in the case of Nitesh Purohit, apart from the statement of Nitesh Purohit under Section 50 of the PMLA, Arvind Singh had stated the modus operandi which shows that for commission of Part A, B C, the money of the commission was distributed by nine shareholders, which sho....... + More

Seeking release of petitioner (writ of habeas corpus) - passing of mechanical remand orders without application of mind - HELD THAT:- In Ram Narayan Singh [ 1953 (3) TMI 38 - SUPREME COURT] , the Apex Court has observed that a writ of habeas corpus is with respect to legality of detention at the time of return of rule and not to the date of institution and that if on the date of return i.e. the return of the rule, the detention is not illegal and is duly authorised by a Competent Magistrate by remand orders then the writ of habeas corpus will not lie. In Kanu Sanyal [ 1974 (2) TMI 85 - SUPREME COURT] , the grounds raised by the petitioner therein were (i) that he was not informed of the grounds of arrest and (ii) the Magistrate had no jurisdiction to try the case, and hence, the remand could not be granted. The Apex Court held tha....... + More

Grant of anticipatory bail - Seeking quashing of ECIR against the petitioner - Money Laundering - schedule offences/predicate offence - person who is not named in the ECIR has locus to seek relief such as quashing of ECIR or not - HELD THAT:- The power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon any person whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The petitioner herein has been summoned vide impugned notice dated 06.10.2023 whereby he has been called upon to submit certain documents and records, which are deemed necessary by the Directorate of Enforcement for the purpose of investigation in the Railway Job for Land Scam case, for which the present ECIR has been registered. A perusal o....... + More

Money Laundering - proceeds of crime - Schedule/Predicate Offence - attachment of properties - whether in the present case, the provisions of Section 19 of the PMLA were duly complied with? - HELD THAT:- From the documents submitted by the respondents, during the course of arguments, it becomes clear that there was material in possession of the Assistant Director of the ED on the basis of which he had reason to believe that the petitioner should be arrested. The document dated 08.06.2023 which has duly been perused by us runs into 17 pages wherein the details of the investigation carried out and the material in possession of the Officer concerned has been referred to. All that had been revealed during the course of investigation was duly put in writing . Detailed reference was made to the material in possession - Both officers perused ....... + More

Seeking grant of bail - Money Laundering - proceeds of crime - scope and ambit of the constitutional protection under Articles 74 and 163 of the Constitution of India on the decisions taken by the Council of Ministers - interpretation of Section 3 of the PML Act - 'the act/process of generation or the attempt to generate the proceeds of crime falls within the ambit of the expressions assist , acquisition , possession or use under Section 3 of the PML Act or not - person can be prosecuted under the PML Act only when there is material to show that he has indulged or assisted in any activity/process of money laundering, albeit an activity/process different and separate from the scheduled offence? - Sections 45 and 50 of the PML Act should be read down in view of the constitutional scheme and mandate of Article 20 of the Consti....... + More

Money Laundering - fraud in sale and purchase of land belonging to two Housing Co-operative Societies - presumption that proceeds of crime used in money transaction - shame and bogus sale deed - HELD THAT:- From the provision of law of Section 3 of the PML Act, it is clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party, connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of the offence of money laundering. As per the explanation, a person shall be guilty of money laundering if such persons is found to have indirectly or directly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in any of its concealment, possession, acquisition, use etc. in any manner whatsoever. Prima facie, involve....... + More

Seeking grant of bail - accused detained without trial - Money Laundering - Criminal Conspiracy - misappropriation of huge funds of Social Welfare Department - siphoning off of the funds from the bank account of Social Welfare Department - HELD THAT:- The record shows that the accused has been in judicial custody as noted in the interim order in connection with the case since 21.04.2018, that is, for 5 years 5 months 26 days. On the other hand, further proceedings in the case has been stayed by order, dated 21.05.2019, which is still in force resulting in non-commencement of trial of the case. The accused has been apparently detained without trial, which cannot indefinitely be allowed to continue without assurance of effective speedy justice to him, who has already undergone one-half of the maximum period of imprisonment specified for ....... + More

Seeking grant of bail - Money Laundering - ramifications involved in the Teachers Recruitment Scam - economic offences - applicability of principles as under Section 439 of the Cr.P.C. - factum of the complicity of the present petitioner so far as the proceeds of crime - HELD THAT:- At the initial stage when the argument commenced and the Enforcement Directorate prayed for filing their affidavit, this Court directed to clarify whether any policy has been adopted by the Investigating Agency so far as the exercise of the powers under Section 19 of the PMLA is concerned - There were no cogent reasons assigned by the Investigating Agency which in the background of the present case satisfies the conscience of the Court regarding the exercise of such powers. Towards the end of the hearing, it was pointed out by the Enforcement Directorate t....... + More

Share manipulation - unlawful gains through disguised trading - transaction pursuant to the alleged SMS - synchronized trades, self-trades and reversal of trades thereby creating a false appearance of trading and manipulation of the trading volumes in the scrip in question - violation of Section 12A of the SEBI Act r/w Regulation 3 and 4 of the SEBI PFUTP Regulations - combined shareholding had triggered the requirement of making an open offer under Regulations 10 and 11 of the SAST Regulations as these 5 noticees were acting in concert and had failed to make an open offer thereby violating the said regulations - orders restraining the appellant from accessing the securities market for a period of four years and from associating himself with any listed Company as a Director HELD THAT:- The finding that the modus operandi adopted b....... + More

Front running trading activity by certain entities - fraud for the purposes of the PFUTP Regulations - Offence under SEBI - investigation found that the appellant Manish Chaturvedi was the key person who perpetrated the front running activity with the aid and assistance of other noticees including his parents (Laxmi Chaturvedi and Manohar Chaturvedi) - HELD THAT:- WTM and the AO correctly held that the trades of Anandilal Chanda and Anandilal Chanda HUF were based on the specific information obtained by Anandilal Chanda from Madhu Chanda, and more so in the absence of any plausible explanation by the appellants (the Chandas) of the peculiar and unusual manner in which their trades were executed ahead of the trades of the clients of Sharekhan and matched with the trades of the Sterling group. We further find that the nature, volume ....... + More

Fraudulent Scheme of using the GDR proceeds to fund a subscriber - GDR issue was fully subscribed was misleading as the investors were not informed that the GDR was subscribed by only one entity - fraudulent scheme and violative of Section 12A of the SEBI Act and Regulations 3 and 4 of the PFUTP Regulations - AO found that the GDR was subscribed by one entity, namely, Vintage - AO further found that on account of the pledge created by the Company with EURAM Bank the funds were not made available at the Company s disposal and the same became available in tranches as and when the loan amount was repaid by Vintage. Further, the loan agreement was not disclosed to the stock exchange and to the Indian investors. HELD THAT:- We find that this modus operandi in the instant appeals is the same as has been dealt with by this Tribunal in ....... + More

Unfair Trade Practices relating to Securities Market - scheme of using the GDR proceeds to fund a subscriber to the GDR issue was a fraudulent scheme and violative of Section 12A of the SEBI Act and Regulations 3 and 4 of the PFUTP Regulations - non-disclosure of the loan agreement and the pledge agreement was violative of Clause 36 of the Listing Agreement as well as Section 21 of the SCRA Act read with Clause 32 and 50 of the Listing Agreement - penalty imposed on company and directors and MCDs HELD THAT:- We find that this modus operandi in the instant appeals is the same and has been dealt with by this Tribunal in a large number of matters relating to the GDR issue wherein the Tribunal has held that non-disclosure of the loan agreement and the pledge agreement was totally fraudulent and violative of the Listing Agreement. This T....... + More

Ex-parte ad interim order - Appropriation of a fixed deposit - squaring off the loans of related parties - diversion of funds and its circuitous routing which was solely for the benefit of the promoter group as the appellant was the Managing Director and was not only in control over ZEEL but, being a key managerial personnel, was also in control of the seven associate entities - investigation revealed that Axis Bank instead of squaring off the credit facility of EGML had adjusted the fixed deposit against the credit facility given to seven related entities of ZEEL - restraint order passed by the respondent pursuant to the ad interim order and the confirmatory order restraining the appellant to function as a Managing Director HELD THAT:- As round tripping of funds happened in a few minutes. Can it be said that each of the transacti....... + More

Insider trading in the scrip of the Company - corporate announcement regarding an update on the real estate operation of the Company - penalty of Rs. 10 lakhs u/s15G(i) of the SEBI Act imposed - allegation levelled against the appellant [Vice Chairman and Managing Director of the Company and also a Member of the Audit Committee] was that the Company made corporate announcement regarding an update on the real estate operation of the Company for third quarter on the Bombay Stock Exchange and the National Stock Exchange of India Limited - corporate announcement revealed that the Company during its second quarter had achieved a new sales volume which was up by 5.6% as compared to the preceding quarter - appellant as urged that the real estate operational data was not a price sensitive information - HELD THAT:- Corporate announcement r....... + More

Writ petitions by minority shareholders of Bharat Nidhi Ltd. ( BNL ) - complains to the SEBI of violation by BNL of various provisions of the Securities laws - allegation of violations pertaining to the minimum public sharing norms ( MPS ) as also violations in respect of the promoters disclosure in shareholding in BNL - as contented that BNL was earlier listed on the Delhi Stock Exchange and after the same ceased to be functional, BNL had sought listing of its share at the Calcutta Stock Exchange, which is also not functional. BNL is now stated to be on the Dissemination Board of the National Stock Exchange. HELD THAT:- The contents of Regulation 29 to the effect may not be released to the public is with a further rider that only if the same prejudices the Board and/or the applicant . These contents are quite, significant, by vi....... + More

Violation of Buyback Regulations and PFUTP Regulations 3 and 4 of the SEBI - Fraudulent and Unfair Trade Practices relating to Securities Market - allegation of misleading public announcement designed to influence the decisions of investors - Company wrote to SEBI informing that it could not ensure buyback of 50% of the amount earmarked as required under Regulation 14(3) of the Buyback Regulations. It requested SEBI to release the cash Escrow amount containing 2.5% of buyback size u/r 15B of the Buyback Regulations HELD THAT:- The investigation report clearly held that the Company had complied with relevant provisions of Regulation 15B (8) of Buyback Regulations (for release of amount deposited in Escrow account by the Company) holding that No major impact on price / volume was observed on the basis of any of the corporate announ....... + More

Request to place on record a compilation of documents - request as made to place on record the compilation of documents, and at this stage, when the Court had already commenced with the final hearing of the proceedings is strongly objected by petitioners - HELD THAT:- We find much substance in the contentions as urged on behalf of the petitioners by Mr. Seervai and Mr. Joshi. At the outset, we may observe that we cannot accept a compilation of documents to be placed on record of the proceedings at the stage the present proceedings stand, that is the Court having already commenced final hearing on the petitions. More particularly on a crucial issue the petitioners have already and quite substantively having argued their case for the entire second session yesterday. It may be that such averments are made in the affidavit as noted by u....... + More

Penalty imposed by SEBI - petitioner's PAN No. given in the order does not belong to him, but to a third party - According to the first respondent, the petitioner is liable to pay interest on the penalty amount from 16.06.2017 till 11.05.2023 - HELD THAT:- If the facts of this case is tested on the touchstone of Section 220 of the Income Tax Act, it will be evident that the first respondent cannot claim any interest, since the order of SEBI imposing the penalty carries a wrong PAN particulars. It may be that the petitioner might have chosen to challenge that order before the appellate Tribunal and also before this Court, but vis-a-vis the payment of interest, it must be fastened on the person satisfying all the features that goes to identify the person conclusively, argued the counsel. First respondent submitted that if the peti....... + More

Unregistered investment advisory activities - Investment advisory services with guaranteed assured returns causing monetary loss to the complainants - Challenging direction to Refund the monies received from the investors towards investment advisory services - HELD THAT:- We find that in the instant case the direction to refund the amount has been issued under Section 11 of the SEBI Act we are of the opinion that SEBI has a power to direct refund of amount in the interest of the investors or to promote development of the securities market. In any case, such power is also derived under Regulation 35 of the Intermediaries Regulations. In our opinion the direction to refund the amount is squarely covered under Regulation 35. The contention that Regulation 35 is only with regard to collection of money under any scheme is patently erroneo....... + More

Violation of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 - Related party transactions without taking prior approval of the Audit Committee and Board as required under the LODR Regulations - two Independent Directors continued to remain as Independent Directors inspite of appointment of their relatives in the Company/ overseas subsidiary which was also violative of the LODR Regulations - penalty of Rs. 25 lakhs under Section 23E of the SCRA against the Company and Rs. 10 lakh each on the two Independent Directors and Rs. 4 lakhs on the Company Secretary - HELD THAT:- Company and the Company Secretary failed to disclose this event under Regulation 30 of the LODR Regulations. Under Regulation 6, the Compliance Officer is responsible for ensuring conformity with the regulatory provisions applicable to a lis....... + More

Fraudulent issuance of GDRs by the Company - Company had misled the investors in believing that the GDR issue was successful whereas there was only one subscriber - penalty of Rs. 1 crore for violation of Section 12A of SEBI on ex-managing director of the company as filled this appeal - HELD THAT:- We find that the proceeds of the GDR issue were received by the Company belatedly and was utilized for the purpose for which the GDR was issued. There is no diversion of funds and no wrongful dealings in securities other than the fact that amount was received belatedly. The AO has himself given a finding that no disproportionate gain is attributed to the appellants nor any finding that any loss was caused to the shareholders or investors. Whether the penalty imposed by the AO was harsh and excessive? - As the appellant had resigned on J....... + More

Delisting orders from DSE - Rishab Ispat Ltd., of which the petitioner herein was a former Director, was listed on the Delhi Stock Exchange was suspended from DSE on account of non-compliance with certain norms of the respondent no. 1/Securities and Exchange Board of India (hereinafter SEBI ) - Directions to Stock Exchanges to deal with companies exclusively listed on non-operational stock exchanges - Scope of exit policy for all derecognized/non-operational stock exchanges - On 10.10.2016, SEBI issued a circular facilitating the exit of derecognized/non-operational stock exchanges and shareholders of the Exclusively Listed Companies (hereinafter 'ELCs') by allowing them to get listed on the nationwide stock exchanges after complying with the diluted listing norms, failing which they will be moved to the Dissemination Boar....... + More

Violation of Regulation 11(1) of the SAST Regulations - Non issue of open offer as warrants were converted into shares - SAST Regulations retrospective or prospective application - AO held that the promoters of Reliance and persons acting in concert acquired the shares and voting rights on 7th January, 2000 which is the date of acquisition and on which date the obligation to make a public announcement for an open offer under Regulation 11(1) was triggered, and that the acquisition of 6.83% of the shares was in excess of the ceiling of 5% prescribed under Regulation 11(1) of the SAST Regulations and, therefore, it triggered the obligation to make an open offer - penalty under Section 15H of the SEBI Act imposed - whether the promoters were liable to make a public announcement under Regulation 3(2) of the 2011 SAST Regulations. ? HE....... + More

Violation of the SEBI (Prohibition of Insider Trading) Regulations - Financial assistance to the preferential allottees - limiting genuine capital infusion - direction of the WTM directing the appellants to pay the amount jointly or severally - HELD THAT:- We are of the opinion, that when the Company uses its own funds and distribute it to the allottees for the purpose of subscription to the shares it deceives the genuine investors and falsely leads the investors to invest in the shares of the Company. Such scheme in our opinion perpetuates a fraud on the ordinary investors and gives a false impression that there was an infusion of funds through preferential allotment. We are further of the opinion, that this kind of fraudulent act which is an unfair device was meant to deceive the investors and such act is clearly prohibited u/s 12....... + More

Order directing SEBI to appoint another Whole Time Member (WTM) - no WTM at the present moment to hear and decide the matter - Delegation of Statutory and Financial Powers - HELD THAT:- As a result of the delegation of powers stipulated in serial no. 19 and 19A, only the WTM under Serial no. 19 can consider the appellants reply and objection for modification / vacation of the ex-parte ad-interim order dated June 12, 2023. It is not known as to when the Central Government will appoint new WTM. The matter is one of urgency since the appellants have been restrained from acting as a directors and / or key managerial personnel of the company and have been further restrained from accessing the securities market and that is why we have framed the timeline to the WTM to pass an order within a stipulated period. We also find that under Cl....... + More

Siphoning of the funds of the listed company through related entities - offence under SEBI Act - Need for Urgent provisional action for passing ex parte ad interim order - As contented issue relates to the financial year 2019-20 and therefore there was no emergent circumstances which led the respondent to pass an interim order after more than 3 years - HELD THAT:- In the instant case the WTM has found that the related entities of ZEEL had defaulted in the repayment of the loan taken by them, as a result of which, the fixed deposit given by ZEEL was encashed by the Bank. The related entities alleged that the money was eventually repaid to ZEEL along with interest. In this regard, the details of the payment was sought by SEBI and the information supplied by ZEEL led to a further enquiry which showed prima facie a round tripping of t....... + More

Delay in the initiation of the proceedings by SEBI - False impression given to the investors regarding the subscription of the GDR - HELD THAT:- We find that the GDR was issued by the Company on December 12, 2007 and the present show cause notice was issued on June 9, 2019 after an undue delay of 12 years. we are of the opinion 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 the Regulations for issuance of a show cause notice and for completion of the adjudication proceedings, nonetheless, the authorities are required to exercise its powers within a reasonable period. In AO, SEBI vs Bhavesh Pabari [ 2019 (3) TMI 197 - SUPREME COURT ] the Supreme Court held that an authority is required to exercise its powers within a reasonable p....... + More

SEBI requisite legal power vested in it to direct the petitioner bank - nature of powers conferred upon SEBI - recovery of debts due to banks and FIs - prevention of auctioning the mortgaged property - do the persons or classes of persons referred to in Section 12 necessarily have to be registered with SEBI in order to be subject to its powers under Section 11B? - petitioner is aggrieved by the impugned emails/communications dated 29.01.2021 and 18.03.2021 by which SEBI directed the petitioner bank to comply with the orders dated 29.05.2018 and 14.12.2018 and not to proceed against the mortgaged property under Section 13 of the SARFAESI Act, 2002 without prior permission of the SEBI - HELD THAT:- One plain meaning that can be given to Section 11B(1)(iii)(a), it being, that persons or class of persons referred to in Section 12, are ....... + More

Validity of order of forfeiture of properties u/s 7 of SAFEMA consequent to revocation of the detention order passed under COFEPOSA - as argued that as detention order passed u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA] has been subsequently revoked/withdrawn as such SAFEMA proceedings would become non est and untenable HELD THAT:- SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto as such activities were having a deleterious effect on the national economy. Section 2 provided for the application of the provisions of the Act only to the persons specified in sub-section (2) thereof. According to sub-section (2)(b) every person in respect of ....... + More

Recovery of penalty imposed on the respondent - Validity of insolvency notice issued to the respondent - interpretation of statute - words creditor, debt and debtor as defined under Section 2A and 2B of the Presidency Town Insolvency Act should be given a restricted conventional meaning - term decree or order appearing in Section 9(2) of the Presidency Towns Insolvency Act 1909 would mean only a decree or order of a civil Court or would it include any order for payment of money passed after an adjudicatory process? - maintainability of application under Section 9(5) - Enforcement Directorate is competent to initiate proceedings in insolvency for failure in payment of penalty imposed or not - invocation of Section 9(2) before the decree or order becoming final. Definition of the terms creditor, debt and debtor - Section 2(a) of the ....... + More

Proceedings initiated u/s 56 of FERA - non issue of SCN - Violation of principle of natural justice - HELD THAT:- No complaint can be filed unless the person accused of such offence has been given an opportunity of showing that he has such requisite permission. It is clear that from the facts of this case and also not disputed by Respondent that there is no such show cause notice which was issued and served on the fresh address of the petitioner at Gurugram. That apart, it is pertinent to note that though the notice issued under proviso to Clause (ii) of sub section (2) of Section 61 FERA was not served upon the petitioner, the demand notice dated 28.08.2020 was served upon the correct address. There is no explanation as to how and from where the ED obtained this correct address of the petitioner while issuing the demand notice. So ....... + More

Foreign contribution utilized for undesirable purposes - Suspension of certificate - seeking Release/permit the Petitioner to utilize 25% of the total foreign contribution amount/funds held by the Petitioner u/s 13(2)(b) of the Foreign Contribution (Regulation) Act - HELD THAT:- Section 13(2) of the FCRA permits utilization of foreign contribution which is in custody of the person whose certificate has been suspended. There is no occasion to restrict the term his custody only to the current account. The amounts which are held in fixed deposits or in government bonds etc. are also unutilized foreign contributions which can be made available to the person whose account has been suspended pending the inquiry u/s 14 of the FCRA. There is no reason for this Court to disbelieve the statement that the Petitioner has already utilize....... + More

Offence under FEMA - gold bullion of 3773.52 gm. was seized along-with other articles like electronic devices mobile phones, hard disk etc during search operations - HELD THAT:- The provisions of Section 37 of the FEMA read with Sections 132 and 132B of the Act of 1961 including its proviso clauses clearly speak that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorized officer shall make a note or inventory of such stock-in-trade of the business. Further, where the person concerned makes an application to the AO within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained, to the satisfaction of the AO, the amount of an....... + More

Stay of demand / waiver of pre-deposit - Levy of penalty - Contravention of Section 18(2) of FERA - failure to realize export proceeds to the tune of US $ 2,03,925/- - Penalties Levied - Tribunal has waived 60% of the total penalty calling upon the appellant to deposit only 40% thereof, for which a period of 30 days was granted - plea for full waiver of mandatory, statutory pre-deposit and non-compliance with an interim order of the Tribunal - HELD THAT:- Tribunal has, in waiving 60% of the penalty, and directing deposit of only 40%, taken note of all contentions of the Appellant, including the hardship projected. In fine, a balance has been struck and the Appellant directed to remit only 40% of the penalty, bearing in mind the interest of the State as well. Taking a cue from the order in the case of Monotosh Saha [ 2008 (8) TMI 9....... + More

Detention order - whether the inordinate delay of thirty years in the execution of the detention order is explained by the concerned authorities? - detention order indicates that the detaining authority has relied upon the search and seizure proceedings u/s 34 of the Foreign Exchange Act 1973 ( FERA ) - HELD THAT:- The detention under the COFEPOSA Act is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing from smuggling goods, or abetting smuggling goods, or engaging in transporting or concealing or keeping smuggled goods or dealing with the same or harbouring person engaged in such activities. Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the petitioner's action, which is prejudici....... + More

Offences committed under the repealed FERA Act - prosecution for the offences punishable as committed prior to the repeal of FERA - purposes of the prosecution of offences punishable under Sections 56 and 57 of FERA - HELD THAT:- What is material here is sub-section (4) of Section 49 of FEMA, which provides that subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Sub-section (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior to the repeal of FERA, provided the competent Court takes its cognizance within two years from the date of coming into force of FEMA. In view of sub-section (4) of Section 49, for the purposes of t....... + More

Proceedings under FEMA - receiving foreign exchange in lieu of issuance of equity shares/share warrants - whether no approval has been granted by FIPB? - HELD THAT:- As clearly transpires without any semblance of doubt that the custodian general of foreign exchange is the Reserve Bank of India and any permission with regard to inflow of foreign exchange would definitely have to have the permission of the Reserve Bank of India. In the case on hand, the permission is for receiving foreign exchange in lieu of issuance of equity shares and for the said purpose, the appropriate authority to grant permission is FIPB. Newbridge, the foreign investor, intended to invest in equity shares in the petitioner-company, with further downstream investment in the sister concern of the petitioner company for which necessary approval was granted by ....... + More

Validity of proceedings under FERA, 1973 post introduction of FEMA, 1999 - contention of the appellants that the department had invoked the provisions of the repealed Act of 1973 subsequent to the Act of 1999 coming into force requires consideration - appellants contented that since the department did not act in terms of Section 49 of the Act of 1999 in invoking the provisions of FERA within the time period prescribed, therefore, the act of the department is invalid - HELD THAT:- Sub Section (3) of Section 49 of the Act of 1999 casts an embargo upon a Court from taking cognizance of an offence under the Act of 1973 and on the Adjudicating Officer from taking notice of any contravention under Section 51 of the Act of 1973, after the expiry of a period 2 years from the date of commencement of the Act of 1999. The Act of 1973 has conte....... + More

Offence under FERA - sum received by petitioner from person outside India and the Petitioner was to make payment to various persons in India on behalf of the person outside India - contravention of the provisions of Section 9(1)(b) and 9(1)(d) of the FERA - HELD THAT:- As after being unsuccessful in the first round, the E.D. had issued a second Show Cause Notice. The E.D. department had not recorded statement of any person who according to them had received any benefit from the said amount - There was no evidence to prove the petitioner guilty as regards proposed distribution. Petitioner had officially received these amounts and had shown the same in the Income tax returns. In fact, in the Order of the CIT (Appeals), it has been quoted that the assigning officer in his remand report dated 17th June, 2004 had admitted that seized cas....... + More

Acquittal of the charge u/s 56 of FERA - trial Court held that there was no other evidence against the respondent except his statements [Ex.CW2/A and Ex.CW2/B] and no material was available on record to connect the appellant with the commission of the alleged crime and the prosecution had miserably failed to prove the case against him - HELD THAT:- As prosecution could not place on record any orders/notice asking the respondent to appear and make the statements. This fact alone proves that the statements made by the respondent were not voluntarily. Apart from that, the learned trial Court has correctly recorded that there is no evidence against the respondent/accused except his own statements Ex.CW2/A and Ex.CW2/B. Even the prosecution could not lead any evidence to connect the respondent with the alleged chits Ex.C2 to Ex.C14 and t....... + More

Maintainability of appeal against an order passed by the Appellate Tribunal for Foreign Exchange - Period of limitation - Appellate Tribunal dismissing the appeal on the ground of provisions of Section 52 of the Foreign Exchange Management Act, 1999 - HELD THAT:- Non-entertainment of the appeal by the Appellate Tribunal on the ground of Section 52(2) of the Act of 1973 was erroneous in view of the ratio laid down in Thirumalai Chemicals Ltd. [ 2011 (4) TMI 489 - SUPREME COURT] However, we find from the materials produced on record that, the appellant was served with the order-in-original dated January 21, 2000 by registered post which was dispatched on March 13, 2000. The appellant is unable to show any reasonable cause as to why, the appellant did not file the appeal within the time prescribed under the Act of 1973. No explanation is put forward under the Act of 1999 for condonation of delay in preferring the appeal. We find no merit in the present appeal.

Contravention of Section 8(1) and 9(1)(a) of FERA by the Company - petitioner and other individuals working for the Company were made vicariously liable for the alleged contravention by the Company by virtue of Section 68 of the Act - HELD THAT:- As in view of order of the Special Director, ED, the court quashed the proceedings in respect of the company alone, (the sole petitioner before it). As considering the status of the present case, which has been dropped by the complainant in respect of all the accused persons, the proceedings in Case pending before the Learned Metropolitan Magistrate, 11th Court, Calcutta under Sections 56 and 68 of the Foreign Exchange Regulation Act, 1973 is liable to be also quashed in respect of all the petitioners therein including the petitioner in this revision. Revisional application is allowed.

Non-realization export proceedings of goods - convertible foreign exchange - Reasonable steps u/s 18(3) of FERA - Suit for recovery of the balance of the price of the goods sold and delivered in respect of an export in any court in India - All Reasonable steps to receive or recover the payment for the goods as envisaged u/s 18(3) of the Act of 1973 - whether, filing of the suit by the appellants before the Hon ble High Court at Calcutta and obtaining a decree thereon for realisation of the balance of the price of goods sold and delivered to the importer would constitute reasonable steps to receive or recover the payment for the goods ? HELD THAT:- In the facts of the present case, the exporter company exported goods of the invoice value of US$ 8,37,200 and received payment of a portion thereof leaving a sum of US$ 6,37,200 o....... + More

Constitutional validity of Section 37A of FEMA Act - order of the Competent Authority affirming seizure by the Authorised Officer - Seeking consequential prayers of quashment of seizure order u/s 37A(1) and confirmation order of such seizure under Section 37A(3) of the Act - reason for seizure was on the ground that the respondent/Directorate of Enforcement found during the course of investigation that no agreement or legal basis was available for remitting the money by the petitioner. Royalty was not a part of the product cost. No work order or purchase order was placed. No intellectual property rights were received. Based upon the impugned seizure, seizure order was passed on 29th April 2022 invoking Section 37A(1) of the Act. Whether the writ petition would be maintainable on the prayer that is sought i.e., to hold Section 37A....... + More

Offence under FEMA - Investigation initiated under FEMA Act initiated - maintainability of the present writ petitions - complainant and Adjudicating Authority being officers of the same rank - As alleged that the Petitioners received foreign direct investment from three foreign companies and one Non-Resident Indian as consideration for issuance of shares in exchange for such investment in M/s Teleonto Tecnologies Pvt. Ltd. - HELD THAT:- Supreme Court has time and again reiterated that a writ petition is not maintainable when an efficacious alternative remedy is available. It is only in certain limited circumstances that a writ petition can be entertained, despite there being an alternative remedy. Petitioners have raised only two issues which need consideration by this Court to decide the maintainability of the writ petition. It....... + More

FCRA registration - Delay of opening of an FCRA bank account with the State Bank of India - Petitioner faced difficulties in uploading the FCRA annual return under Form FC-4 under Rule 17 of the Foreign Contribution (Regulation) Rules, 2011 for F.Y 2019-2020, due to the fact that the bank account details were being sought as of 31st March, 2020 - HELD THAT:- Admittedly, in the present case, the FCRA account in the SBI was opened by the Petitioner only on 4th October, 2021, which was much beyond the deadline fixed initially i.e. 31st March 2021, and even after the expiry of the extended period till 30th June 2021 vide notification dated 18th May 2021. Petitioner has now opened the said FCRA bank account in SBI Sansad Marg Branch, Parliament Street-New Delhi, and has deposited the penalty and also uploaded the annual return for the ....... + More

Maintainability of WP against Violation of the Foreign Exchange Management Act, 1999 - proceedings initiated u/s 6(3) of the Act, 1999 - The provision has been omitted - saving clause - Scope of alternative remedy - Petitioners challenge the impugned order, inter alia, on the ground that they were charged under Section 6(3)(b) of the Act, 1999 which was subsequently omitted from the Act, 1999, w.e.f. 15.10.2019 - whether present writ petition is not maintainable as the Petitioners have an efficacious and alternative remedy under Section 19 of the Act, 1999? - HELD THAT:- Section 6 of the Act, 1897 is applicable to omission of a provision by the legislature. Section 6 of the Act, 1897 saves all the pending proceedings under a provision that was subsequently omitted. Now coming to the facts of the case, it is not in dispute that the proc....... + More

Foreign Contribution Regulation - Non-filing of the returns - annual returns for the years 2019-2020 were to be uploaded in Form FC-4 for which SBI account as of 31st March, 2020 was needed, the details of the SBI bank account could not be given - Petitioner seeking directions to the Respondent Ministry of Home Affairs, Union of India to allow the Petitioners to fill and upload Form FC-4 on the Respondent s portal in order to enable them to file the annual returns for the financial year 2019-2020 - whether the SBI bank account could have been sought for as of 31st March 2020, when the amendment itself came into effect later i.e., in September 2020? - HELD THAT:- In view of the reasoning given in the said order in WNS Cares Foundation [ 2023 (1) TMI 944 - DELHI HIGH COURT] as held receipt of foreign contribution as on 31st March o....... + More

Recovery of confirmed demand - Freezing the bank account of the petitioner - petitioner neither filed an appeal nor paid the tax and penalty - non-registration under Finance Act - HELD THAT:- The petitioner neither filed an appeal nor paid the tax and penalty as determined, and therefore, notice under Section 87(b) of Chapter V of the Finance Act 1994 came to be issued for freezing the bank account of the petitioner. It was also said that the total amount outstanding was Rs. 1,05,73,062/- - petitioner neither made use of the statutory remedy of appeal within the time prescribed as per Section 85(3A) of the Finance Act 1994 nor did he reply to the notice issued in Ext .P7 and after the expiry of the maximum period of appeal of three months, the petitioner approached this Court by filing this writ petition. This Court does not exercis....... + More

Default in payment of service tax - Prosecution proceedings against the director of the company - offence punishable u/s 89 of Finance Act, 1994 r.w.s. 9 and 9AA of Central excise Act - Period covered is 2011-12 to 2015-16 - Prosecution launched in 2018 - CIRP Proceeding under IBC - Closure of Liquidation proceedings against Corporate Debtor since the company was sold as going concern - all the liabilities, dues of the company stand extinguished as per the provisions of IBC - HELD THAT:- A perusal of record discloses that the Liquidator of the accused No. 1-company has filed application praying for closure of the liquidation process of the corporate debtor and the National Company Law Tribunal, Hyderabad Bench-II vide order dated 07.02.2023 held that the assets of the Corporate Debtor were sold to the successful bidders; that as seen f....... + More

Legality and validity of the order-in-original dated 23.03.2023 passed by respondent No. 1 - respondent No. 1 did not put the petitioner on notice regarding production of original supporting documents - non-taxability of the services rendered - HELD THAT:- The ends of justice would be met if an opportunity is granted to the petitioner to produce the relevant documents in support of its claim that services rendered by the petitioner are exempted from service tax in terms of the notification dated 20.06.2012. The impugned order-in-original dated 23.03.2023 is set aside - matter remanded back to the file of respondent No. 1 who shall give due opportunity of hearing to the petitioner and thereafter pass a fresh order in accordance with law - petition allowed by way of remand.

Levy of Service tax - reimbursement of expenses - inclusion in the assessable value or not - appellant provided services of promotion, marketing of petroleum products, customer care and other auxiliary services on behalf of their client M/s BPCL - HELD THAT:- It is found that the appellant was only operating the BPCL filling stations which was COCO outlet and were getting reimbursement of expenses as shown by them in their monthwise statement annexed at page 76 to 81 of the paper book. Further, it is found that the Chartered Accountant has also certified that the appellant was only getting reimbursement of expenses viz. salary/wages for manpower, conveyance, tea and coffee remuneration of operator. In view of the decision of the Hon ble Apex Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TE....... + More

Levy of service tax - amounts collected as reimbursement of electricity charges - reimbursement of air conditioning charges - invocation of Extended period of Limitation - penalty - HELD THAT:- Reimbursable expenses have been held to be not consideration for service by the High Court of Delhi in case of INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. VERSUS UOI. ANR. [ 2012 (12) TMI 150 - DELHI HIGH COURT] - thus, no service tax can be charged on the reimbursable expenses which the appellant had collected towards providing electricity and air conditioning. Invocation of Extended period of Limitation - HELD THAT:- Since the issue decided on merits in favour of the appellant insofar as the demand of service tax on these two expenses is concerned, and since the appellant is not contesting the rest of the demand, the questio....... + More

Failure to pay service tax - Jurisdiction of the Adjudicating Authority - Mining service - Supply of tangible goods service - Site formation service - extended period of limitation - No penalty imposable. Jurisdiction of the Adjudicating Authority - HELD THAT:- The jurisdiction vested in an authority may be classified into (i) territorial or local jurisdiction (ii) pecuniary jurisdiction (iii) jurisdiction over the subject matter etc. The list is not exhaustive. The Central Board of Excise and Customs in exercise of powers conferred by sub-rule (1) of rule 3 of the Central Excise Rules, 2001, may based on the requirement, invest an officer of the central or state government with jurisdiction only over a subject matter like investigation culminating in the issue of a show cause notice to the parties concerned, without investing tha....... + More

Disallowance of CENVAT Credit u/r 14 of CCR - input services - nexus with the output services - Information Technology services Information Technology Enables services (IT ITES) - HELD THAT:- The proceedings under Rule 14 and Rule 5 of CCR are similar in nature. Further, taking into notice the Order of the Commissioner (Appeals) dated 18.09.2017, it is found that the issue involved in these Appeals has been already adjudicated in detail and allowed in favour of the Appellants. This Order of the Commissioner (Appeals) also includes the period of dispute in the present Appeals. The impugned order set aside - appeal allowed.

Exemption from Service Tax - services provided to the Chief Engineer, Military Engineer Services - applicability of N/N. 25/2012-ST dated 20.06.2012 - suppression of facts on the part of the appellant or not - extended period of limitation - HELD THAT:- It was possible for the Appellant to hold that on the activity carried out by them service tax was not payable on such activity since the services were provided to central government for discharge of sovereign function. Whether the demand of service tax is required to be set aside on the ground of limitation? - HELD THAT:- It is undisputed fact in the present matter that the entire issue has arisen on the basis of comparison of the income disclosed by the appellant in their financial statements and disclosed the value of taxable services in their periodical returns. It is also undi....... + More

Levy of interest and penalty - Non-payment of service tax - reimbursement received on various headings - principles of natural justice - HELD THAT:- It has been held by the Hon ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] wherein the Hon ble Supreme Court has held that reimbursable amount is not part of the consideration received and hence is not liable for Service Tax payment - Even the Co-ordinate Benches of the Tribunal at Bangalore and Ahmedabad have held in the case of the same Appellant (CISF) that medical expenses and other reimbursable expenses are not liable for Service Tax. Therefore, the Appellant is not required to pay Service Tax Rs. 1,29,625/- on account of medical expenses reimbursement received in 2009-10 ....... + More

Refund claim - time limitation - claim rejected on the ground of time bar holding that the refund claim has not been filed within one year as is required under section 11B of the erstwhile Central Excise Act - HELD THAT:- The bare perusal makes it clear that Section 142(5) of CGST Act, 2017 provides that the refund claim of service tax paid under the existing law (Central Excise Act, 1944) in respect of services not provided shall be disposed of under the existing law and has to be paid in cash. It states that such refund is subject to provisions of sub-section (2) of section 11B of Central Excise Act, 1944 only. In the present case, refund has been rejected on the ground of being filed beyond the period of one year as stipulated in sub-section (1) of section 11B. The contract having been annulled on 9.8.2018, it cannot be expected....... + More

Refund of service tax paid - SEZ Units - various input services which it had received from its corporate office through ISD invoices - Service Tax exemption notification No. 12/2013-ST - Claim rejected since filed after one year from the date on which the service tax was paid to the service provider and hence they did not meet the time limit set in the exemption notification - what is the meaning of an authorised operation and what is the meaning of prescribed under the SEZ Act and what are such prescriptions and whether they have been fulfilled? - interest on delayed refund. HELD THAT:- While the SEZ Act itself provided for exemption from service tax (as well as Central Excise duty and Customs duty), exemption notifications were also issued by the Government under the respective laws. These exemption notifications were also issue....... + More

Part refund rejected - Air Travel Agent services - Banking and Financial services - Business Support services - Chartered Accountant services - - Custom House Agent services - General Insurance services - Facility Management Services - Management, Maintenance Repair services - Management or Business Consultant services - Rent-a-Cab services - Telecommunication services - rejection on the ground that there is no nexus between input services and the output services exported by the Appellant - period of dispute is from April 2011 to September 2011. Air Travel Agent services - HELD THAT:- These services are in connection with services provided by the air travel agent to book air tickets for employees travelling for the purpose of visiting clients or conducting business meetings. The service is also required for the purpose of travel....... + More

Condonation of delay in filing appeal - appeal not presented within the period of two months nor within the extended period of one month -satisfactory reason for delay presented or not - HELD THAT:- A perusal of sub-section (3A) of section 85 clearly indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to Service Tax, interest or penalty. It further provides that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. The discretion of the Commissioner to condone the delay is, therefore, circumscribed by the condition set out in proviso and the delay ca....... + More

Levy of Service Tax - amount received from the resident/members of the Society against supply of water and maintenance of water filtration, lifting, storage system under the Contract - HELD THAT:- The issue has been decided by the Gujarat High Court in SPORTS CLUB OF GUJARAT LTD VERSUS UNION OF INDIA 3 [ 2013 (7) TMI 510 - GUJARAT HIGH COURT] , Jharkhand High Court in RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE SERVICE TAX [ 2012 (6) TMI 636 - JHARKHAND HIGH COURT] and also by this Tribunal in M/S FEDERATION OF INDIAN CHAMBERS OF COMMERCE AND INDUSTRY, M/S ELECTRONIC AND COMPUTER SOFTWARE EXPORT PROMOTION COUNCIL VERSUS CST, DELHI [ 2014 (5) TMI 183 - CESTAT NEW DELHI] . The same have been followed in a later order by the Principal Bench in CST, DELHI VERSUS DLF GOLF RESORTS LIMITED AND VICE VERSA [ 2015 (11) TMI ....... + More

Service of SCN - recovery notice was delivered late - Appeal rejected on the ground of limitation - appellant alleged to have not declared and discharged service tax towards income from various types of commission and some other taxable heads - HELD THAT:- The Order-in-Original dated 30.7.2020 was served upon the appellant by two different modes one by speed post which apparently has not returned back undelivered ; two that the order was delivered to one of the employee of appellant namely Shri Prateek Rao. He admittedly is the employee of appellant as service supervisor - it is opined that issuance of copy of order by speed post does not amount to service thereof as such. Because it will be mere dispatch of the order. As per section 85 of Finance Act, 1994, period two months for filing appeal before the Commissioner (Appeals) has to ....... + More

Business Auxiliary Service - failure to discharge service tax - charitable concern - it was held by CESTAT that it is seen prior to 1.5.2006, the services rendered to a client by a commercial concern would only qualify as BAS. The services rendered to any person did not fall within the ambit of 'Business Auxiliary Service'. HELD THAT:- There are no reason to interfere in the matter. The Civil Appeal is hence dismissed.

Refund of amount retained without authority of law - Interchange income - amount deposited under protest - tax leviable or payable by the petitioner or not - period from October, 2007 to June, 2012 - Principles of unjust enrichment. The petitioner has contended that such amount was deposited by the petitioner with the respondents, to buy peace, in the event of any prospective demand towards service tax and interest on interchange income . HELD THAT:- When clearly such amounts were deposited by the petitioner under protest and categorically not accepting any liability to pay service tax on such count, the department was not precluded from taking an appropriate position at the relevant time, and/or surprisingly it was not advised to do so, to raise a demand against the petitioner in the manner known to law, in contesting the posit....... + More

Seeking interest on reimbursement of service tax from the service recipient (Port Authority) - HELD THAT:- The defendant has reimbursed the service tax paid by the plaintiff on 10th March, 2017, as per the direction passed by the Hon ble High Court in the writ proceeding dated 24th February, 2017, after submission of discharge certificate by the plaintiff. The plaintiff has submitted discharge certificate as per the direction passed by the Hon ble Court - The plaintiff admittedly not paid the service tax during the subsisting of contracts. The plaintiff has paid service tax firstly on 31st December, 2013 and secondly on 31st December, 2014 with interest. Admittedly, at the time of claim of reimbursement of service tax, the plaintiff has not submitted discharge certificate in Form VCES-3. In the present case, the plaintiff has paid p....... + More

Direction to Assessing Authority to complete the assessment afresh - direction to respondents 4 and 5 to deposit the amount of service tax erroneously collected from the petitioner to the 1st respondent to discharge the VAT liability - rejection of request for refund of the service tax paid - HELD THAT:- The imposition of any tax has to be with the authority of law. In the instant case, the petitioner apparently proceeded on the assumption that the activity carried out by it was a service contract and proceeded to remit service tax in respect of its entire turn over. However, the question whether a pest control contract is a works contract by reason of there being an element of sale of the materials used for pest control was considered by the various High Courts as well as the Apex Court. It is an admitted fact that the said question h....... + More

Direction to first respondent to consider the payment made by the petitioner dated 1.3.2021 as payment under SVLDRS Scheme - direction to first respondent to issue discharge certificate in form SVLDRS 4 to the petitioner - HELD THAT:- Since the Central Government was delegated with power to fix the time limit for availing the scheme and for making the payment, the Central Government came with the Notifications and provided time limit for the same and the said time limit was extended from time to time due to COVID pandemic situation. Even according to the petitioner, the said scheme was extended upto 30.09.2020 for making the payment by virtue of the Notification dated 27.06.2020. The provisions under the Finance Bill, with regard to the fixation of time limit for availing the scheme and with regard to the extension of time for makin....... + More

Availment of irregular credit - Clandestine Removal - failure to maintain proper records of receipt, issue and consumption of raw materials/inputs required for manufacture of the finished goods, being MS ingots and MS fabrication - HELD THAT:- From analysis of data in the balance sheet for the period 2004 05 to 2007-08, it appeared that there is great variation in production parameters including the power consumption per unit of production of ingots. The basic raw materials required for manufacture of MS ingots are sponge iron, pig iron and/or scrap. Sponge iron was also used in plants using coal-based technology and gas-based technology. The percentage of usage of charge mix was maximum 30% in the case of gas based sponge iron, and it may be as high as 80% in case of coal-based sponge iron. The yeild was also higher by 2% in case of g....... + More

Interpretation of the word exemption - applicability of Notification No. 23/2003-CE was amended by Notification No. 22/2006-CE - exemption from SAD on the goods cleared from the factory in the shape of sample quoting not for sale in DTA - HELD THAT:- Admittedly in the present case there is no ambiguity in the notification and the issue needs to be considered by interpreting the notification strictly not by referring to the context etc as stated by the impugned order. Undisputedly the goods in dispute were not taxable because only that turnover was subject to tax which was a commercial transaction and the clearance of the samples was excluded from the taxable turnover as per Section 7 of the U P Vat Act, 2008. In the present case the goods in dispute are not specified in schedule I or Schedule IV of the U P VAT Act hence are not ex....... + More

Validity of SCN - Recovery of Refund claim - Issuance of impugned notices for return of the Cess, since earlier it had been refunded on the basis of then valid law, as laid down by the Supreme Court. HELD THAT:- When the matters were taken up for final consideration, it was reported to this Court that, the same issue was pending before the Supreme Court, and as such, all these matters were adjourned on many dates, to await the outcome thereof. The matters before the Supreme Court were then disposed of vide order dated 04.07.2022, whereby the subsequent decision of the Supreme Court overruling M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [ 2017 (11) TMI 655 - SUPREME COURT] in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] was held, to....... + More

Recovery of CENVAT Credit wrongly availed - disputed quantity of inputs of 9.857 MTs waste and scrap purchased by the Respondent, Arsh Alloys from various ship breaking units during the period from April 2007 to August 2010 - It is the case of department that Respondent has received only invoices from ship breaking units without actual receipt of inputs. HELD THAT:- It can be seen that case of the department is not solely based on statements of various third parties but also other material viz. bazaar scrap, note book showing details of transactions with the ship breakers found at the premises of Respondent and discrepancies noticed in transport documents viz. quantity transported beyond permissible limit and absence of chantiwala (scrap sorter) engaged by the Respondent. As regards, bazaar scrap found during search at the premis....... + More

CENVAT Credit - sulphuric acid (by- product) - common input used for manufacture of taxable as well as exempt goods - non-maintenance of separate records - reliance placed upon Explanation (1) introduced w.e.f. 01.03.2015 and Board circular dtd. 25.04.2016 to demand the amount in terms of Rule 6(3) of Cenvat Credit Rules, 2004. HELD THAT:- A perusal of Rule 6(1) clearly shows that the manufacturer has to manufacture dutiable goods as well as exempted goods. It has to be seen that though the said explanation puts forward a deeming provision that non-excisable goods cleared on payment of consideration are also to be considered as exempted goods, there is no corresponding amendment made in sub-rule (1) of Rule 6 so that the goods that emerged out of process of manufacture falling in clause (1) are also to be considered as exempted good....... + More

Invocation of Extended period of Limitation - Recovery of central excise duty on coal extracted and cleared by Jindal Steel Power Ltd. - suppression of material facts from the department - additional value of coal was not included by the appellant in the invoices for payment of excise duty and this fact was not disclosed in the statutory ER-1 returns - revenue neutrality - HELD THAT:- In PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT ], the Supreme Court examined whether the department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Central Excise Act. The proviso to section 11A of the Central Excise Act which was considered by the Supreme Court carved out an exception to ....... + More

Disallowance of CENVAT Credit - inputs and capital goods - process of making electronic capacitor grade metalized dielectric plastic film (MPP film), falling under Chapter 3920 2090 of the CETA, 1985, amounts to manufacture or not - HELD THAT:- The issue whether the process of making MPP film amounts to manufacture or not is no longer res integra - under similar facts and circumstances, the Coordinate Bench of this Tribunal at Mumbai in the case of Paper Products Ltd., vs CCE, Mumbai [ 2014 (3) TMI 521 - CESTAT MUMBAI ] have distinguished the ruling of Hon ble Supreme Court in the case of Metalex India Pvt Ltd., vs CCE [ 2004 (2) TMI 387 - SUPREME COURT ] and have held that under similar facts and circumstances, the process amounts to manufacture. It is further found that Coordinate Bench in Chandigarh in the case of Dhruv Industrie....... + More

Classification of goods - Chick drinker and Auto feeder manufactured by the appellant - classifiable under CETH 84361000 of Central Excise Tariff Act, 1985 as claimed by the appellant or whether to be classified under CETH 39269099 as held by the department? - it was held by Tribunal that the impugned goods merit classification under CETH 84361000, as adopted by the appellant. HELD THAT:- There are no merit in the appeal - appeal dismissed.

Recovery of credit of tax paid on input services - manufacturer of ball bearings - common use in undertaking of manufacturing activity as well as rendering of exempted service - Non-reversal in the manner prescribed in rule 6 of CENVAT Credit Rules, 2004 - mechanism to be adopted for neutralization owing to operation of rule 6(2) of CENVAT Credit Rules, 2004 - HELD THAT:- The issue lies in the narrow compass of applicability of rule 6(3) of CENVAT Credit Rules, 2004 insofar as the period prior to specific exclusion of trading activity is concerned. From the very beginning, eligibility for availment of CENVAT credit of tax paid on input service was set out to exclude such as used for undertaking exempt service which incorporates both taxable service subject to exemption and services on which no tax is leviable thereon. Thou....... + More

Principles of natural justice - order passed without participation of noticee - manufacturing of goods taking place or not - plant and machinery belonging to appellant or not - premises for carrying out impugned manufacturing activity are or were in his possession or not - relevancy on statements placed - corroborative evidences or not - HELD THAT:- The impugned order was passed without the participation of the noticee except to the limited extent of filing reply to the show cause notice. Undoubtedly, the appellant had been placed on notice of the dates of hearing despite which there is demonstrated non-participation by the appellant. The seizure had not been effected by the central excise officers. We also take note that, other than the statements of the appellant herein and few others, no effort had been made by the central excise....... + More

Clandestine removal without entering in the production records - mild steel (MS) ingots - Penalties under rule 26 of Central Excise Rules, 2000 and section 11AC of Central Excise Act, 1944 - recovery of differential duty under section 11A of Central Excise Act, 1944 along with interest thereon under section 11AB of Central Excise Act, 1944 - between September 2003 and July 2009. The case of the central excise authorities, in a nutshell, is that raw materials procured from the open market was utilized to enable unreported production which is evidenced by inflated consumption of electricity during the reported heat cycles preferring to take cover under inefficient performance per cycle. HELD THAT:- From an analysis of the facts, it would appear that correlation of certain factors concerned with production do not suffice for establi....... + More

Recovery of CENVAT Credit alongwith interest and penalty - procurement of items of iron and steel which were used for fabrication and erection and installation of plant - HELD THAT:- The issue of eligibility of products of iron and steel used for, or in relation to, manufacture of capital goods or for fixing of capital goods came to be excluded from availment of credit only with effect from 7th July 2009 and the present dispute pertains to the period prior to 19th August 2008. The original decision of the Tribunal in re Vandana Global Ltd [ 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] , confirming the retrospective application of the amendment, has since been discarded by the Hon'ble High Court of Chhattisgarh. Accordingly, the first appellate authority was correct in determining the eligibility for CENVAT credit on produc....... + More

Classification of manufactured goods - Badam Milk Drink Ready to Drink - to be classified under 0401 11 as flavoured milk or under CETH 2202 9030? - HELD THAT:- It is found that with the introduction of 8-digit Classification Code, there is a specific entry for beverages containing milk, which was not there in the earlier Central Excise Tariff. Further Tarriff item 0401.11 flavoured milk whether sweetened or not put up in unit containers ordinarily is not anymore present under Chapter 04 after the introduction of 8 digit classification code. With the introduction of the 8 digit, since there is a specific classification for the impugned item under Chapter sub-heading 2202 9030 the same has to be classified under this specific heading in view of Rule 3(a) of the General Rules for the Interpretation of Central Excise Tariff, which says t....... + More

Area Based Exemption - Recovery of excess refund sanctioned to the assessee in the initial month where the Cenvat credit was not fully utilized - Utilization of CENVAT Credit in the subsequent period - HELD THAT:- During the hearing, it is informed by the Ld.D.R. that this bench has decided similar issue in the case of M/S OZONE PHARMACEUTICALS AND M/S OZONE AYURVEDICS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, GUWAHATI [ 2023 (9) TMI 1371 - CESTAT KOLKATA] , wherein the appeal filed by the Appellant was allowed - It was held in the said case that the refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated....... + More

Project Import - Mega Power Project - international competitive bidding - exemption under notification 6/2006 dated 01.03.2006 - HELD THAT:- The Respondent supplied components/parts/accessories to the Coal Handling plant for Barh Super Thermal Power Project. The Respondent vide their letter dated 27.11.2010 submitted a certificate issued by the Joint Secretary, Ministry of Power, to the effect that the project was a mega power project. The Project Authority Certificate dated 05.02.2007 categorically states that supply of goods under the contract to be made to the power project in India were under the procedure of international competitive bidding. The name of the Respondent was included as sub-contractor in the contract document of M/s DVC, who were responsible for completion of the mega power project. The Respondent has satisfied a....... + More

Recovery of refund - Exemption to new industrial units which commenced its commercial production on or after 24.12.1997 - goods cleared from units located in Export Promotion Industrial Parks (EPIP) in the State of Assam - benefit of N/N. 32/99-CE dated 08.07.1999 - HELD THAT:- Similar issue in the case of M/s Ozone Pharmaceuticals Limited Vs Commissioner of Central Excise and service Tax, Guwahati [ 2023 (9) TMI 1371 - CESTAT KOLKATA] , wherein the appeal filed by the Appellant was allowed - it was held in the said case that the refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner a....... + More

Valuation of goods - captive consumption - determination of transfer price, which is much lower than value that should have been determined as per Rule 8 9 of Central Excise (Determination of Price of Excisable Goods) Valuation Rules, 2000 and CAS-4 - Extended period of limitation as per proviso to Section 11A(1) of the Central Excise Act - demand on duty imposing equivalent penalty - HELD THAT:- Appellant have already paid an amount of Rs.85,25,918/- towards central excise duty and Rs.37,843/- towards education cess. From this chart it is quite evident that appellant has admitted and paid the entire differential duty liability for the year 2003-04 and 2005-06. There is a short payment only in the year 2004-05. It is also noted that the appellant sister concern was taking the CENVAT Credit of the differential duty paid by them on the....... + More

CENVAT re-Credit on inputs, provisionally written off in the books of accounts - Rule 3(5B) of CENVAT Credit Rules, 2004 - invocation of extended period of limitation - interest - penalty. It appeared to the department that the CENVAT credit on Obsolescent material which was earlier debited, was taken back on 30.06.2017, without utilising the same in the manufacture of final products. HELD THAT:- The Appellant have availed CENVAT re-credit of Rs.34,84,905/- on 30.06.2017 on the inputs which were provisionally written off earlier and carried forward the same in ER 1 return filed prior to introduction of GST in terms of Section 140(1) of the Act as transitional credit. It is pertinent to note that the material on which CENVAT credit was availed was not fully written off. In terms of provisions of Rule 3(5B) of erstwhile CENVAT ....... + More

Clearance of some goods on payment of duty while availing the benefit of exemption - Benefit of exemption specified with a cap of maximum quantity - exemption under N/N.4/2006-CE dated 1.3.2006 as amended by N/N. 4/2008-CE dated 1.3.2008 with effect from 1.4.2008 - HELD THAT:- A plain reading of the said Notification reveals that paper and paper board articles thereof were eligible for clearance at Nil rate of duty, with effect from 1.4.2008, subject to fulfilment of Condition No.10 prescribed under the said Notification - For the present purpose, clause (i) of the Condition No.10 is relevant. It is stipulated under the said clause (i) of Condition No.10 that the exemption shall apply only for clearances made for home consumption from a factory in any financial year up to first clearances of aggregate quantity not exceeding 3500 ....... + More

Refund of duty - doctrine of unjust enrichment - duty was paid under compounded levy scheme - Refund was sanctioned but credited to the Consumer Welfare Fund under erstwhile Section 12B of the Central Excise Act, 1944 - HELD THAT:- It is astonishing to note that the department is missing a simple thing to notice that the company was paying excise duty liability on compounding basis i.e. its liability was fixed on the basis of no. of machines. Accordingly, the company was responsible to pay excise duty even if it had not produced a single pouch of scented tobacco jarda or branded chewing jarda as the case may be and if this was so it is beyond comprehension that how the company could take excise duty as component of cost for fixing price as mentioned in the order at several places. Since the company was paying excise duty on compound....... + More

Adjustment of GST amount deposited by the petitioner in the financial year 2018- 19, which inadvertently could not be deposited in the financial year 2017-18, but deposited by the petitioner in the month of June 2018 i.e. financial year 2018-19 - circular dated 31.12.2018 as well as provisions of Section 39(9) of the GST Act - it was held by High Court that Both the assessing authority as well as the appellate authority have committed the said misreading of GSTR-9, hence both the impugned orders cannot stand and are set aside. HELD THAT:- There are no reason to interfere in the matter - SLP dismissed.

Valuation - works Contract - Reduction in turnover as per Rule 9 of the Value Added Tax Rules - cement imported from outside the State of U.P. - reduction in expenses from 21% to 10% - HELD THAT:- The general rule of law in taxing statutes is that in case of any doubt the benefit should be given to the assessee. However, in case of exemption and deduction to be given, a stricter approach may be followed, as per catena of judgments of the Supreme Court, to examine whether the assessee is eligible for such benefit - In the present case, there is no factual dispute of goods having been imported from outside the State of U.P. and, therefore, the assessee clearly qualifies for the said benefit. In light of the same, the question is answered in favour of the assessee and against the Department - the revision application is dismissed.

Return of the balance amount kept by the Revision Petitioner on behalf of the customers - sale proceeds for levy of tax for imposing penalty under section 67 of the KVAT Act or not - sufficient material exists for imposing penalty or not - penalty confirmed based on presumptions and surmises or not - non-speaking and cryptic order - failure to grant opportunity to the petitioner for adducing further evidence or not - HELD THAT:- On the facts of the instant case, when it is found that the petitioner dealer had clearly contravened the terms of the Central Government Scheme that proposed benefits to purchasers of coir looms subject to their complying with a particular procedure for securing the said benefits, the contention of the petitioner cannot be accepted that, who was a person entrusted with the task of supplying the looms that the ....... + More

Violation of principles of natural justice - petitioner was not given a fare and reasonable opportunity to defend his case - HELD THAT:- All the notices which were issued to the petitioner went unserved. Which apparently establishes the fact that the petitioner had never received any communication for replying to the show cause notice issued or for that matter, the notice of personal hearing is concerned. Another aspect which needs to be considered is that, according to the petitioner, the establishment stood closed as an impact of COVID-19 pandemic. In addition, it was also seized by the bank authorities on account of the default on the part of the landlord in repayment of loan availed, which further gave rise to the petitioner not being available at the concerned address where notices were issued - Even on 23.06.2023, when the pet....... + More

Maintainability of appeal - appellant was relegated to pursue his alternative remedy under the statute - Recovery of tax dues of the firm for the assessment year 2002-2003 - appellant retired from the partnership with effect from 17.10.2000 and the fact of his retirement was intimated to the Department - HELD THAT:- It is not in dispute that the retirement deed that showed the appellant as having retired from the partnership firm in the year 2000 was received by the Department well before the assessment year 2002-2003. It is also not in dispute that in the penalty proceedings initiated for the said period, the appellant was not shown as partner of the firm that was proceeded against. Still further, in the assessment proceedings against the firm, the partner who was admitted to the partnership in lieu of the appellant was also shown as ....... + More

Rectification application - Levy of penalty - wrong route adopted by the drivers - if the distance has been wrongly reflected, why it cannot be corrected to absolve the appellant of the penalty imposed upon it vide the impugned order? - HELD THAT:- It is not the case of the respondents that the drivers were not carrying the invoices/bills when the vehicles were intercepted by the competent authority. Once the drivers had accepted that there was a mistake in calculating the distance, the very reason for imposing the penalty does not survive. Non reporting of goods before the ICC, Talwandi Sabo cannot be made a ground to impose the aforesaid penalty. It is held that the appellant- assessee is not liable to pay the penalty, as imposed by the respondent- department. Hence, the present appeal is allowed

Enhancement of turnover - Best Judgement assessment - rejection of account books - no basis of fixing the turnover - enhancement of turnover under the Central Sales Tax Act merely on the basis of surmises and conjunctures - HELD THAT:- Merely because books of account under local sales have been rejected, the same will not necessary to led the ground for rejecting the books of account under Central Sales Tax Act also in the absence of any cogent material available on record - From perusal of the impugned order, neither any reference nor any material have been brought on record sustaining the enhancement of disclosed turnover under Central Sales Tax Act. This Court in the case of M/s R.D. Gupta has held that the books of accounts and disclosed turnover under Central Sales Tax Act cannot be rejected merely because books of account un....... + More

Maintainability of petition - barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 or not - HELD THAT:- The Hon ble Court in M/S. SRI BALAKRISHNA TRANSPORT VERSUS THE COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI. [ 2003 (9) TMI 827 - MADRAS HIGH COURT] has held that when express provision is not there then the authority is not having power to impose. Infact in other taxing statues like Income Tax Act there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, impose interest and to impose penalty, if returns are not filed. Such provisions are not available in the Entry Tax Act. The Act is silent in case if return not filed. The Act is not empowering the authorities to take action for....... + More

Disciplinary proceedings against formerly Appellate Deputy Commissioner - Entitlement to challenge the charge memo - petitioner submitted that the petitioner is a quasi judicial appellate authority exercising powers conferred under Section 51 of the Tamil Nadu Value Added Tax Act and Rules and hence, the order passed by the petitioner cannot be subjected to Tamil Nadu Government Servants' Conduct Rules 1973 - HELD THAT:- If the order passed by the quasi judicial authority is taken as a foundation for bringing the quasi judicial authority under disciplinary proceedings, no quasi judicial authority can discharge his functions without fear. While exercising the quasi judicial power, the authority concerned should have the independency to decide the issue within his power. Even wrong interpretation of law or wrong appreciation of facts....... + More

Condonation of delay of 15 years i.e. 5,484 days in filing appeal - inordinate delay was explained by the applicant-assessee stating that a letter had been written to the General Manager of the assessee seeking guidelines with reference to the aforesaid assessment order dated 7.8.2003 - it was held by High Court that The fact that the assessee had been writing letters internally is also of no consequence, inasmuch in the context of delay of 15 years procedural delays that sometimes occur in such matters and which are often accepted as due explanation of the delay do not are of few days or few months, not 15 years. The delay is wholly inordinate and excessive. HELD THAT:- There are no reason to interfere with the impugned order(s). The Special Leave Petitions are hence dismissed.

Eligibility for input tax credit - exemption of inter-state sales from tax - HELD THAT:- Since the statutory provisions under the KVAT Act restrict the availment of input tax credit to only such situations where tax is payable on outward sales and there is a prohibition against availment of input tax credit in situations where the outward inter-state sale is exempted, the issuance of the exemption notification by the State Government under Section 8(5) of the CST Act must be seen as bringing into operation the prohibition under the 3rd proviso to Section 11(3) in respect of input tax credit and the 3rd proviso to Section 12(1) in the case of special rebate - the question really is not whether the petitioners had an option to avail the exemption envisaged in the notifications or not; rather, the point is that by virtue of the notificati....... + More

Permission to petitioner to issue/generate the 1st respondent to allow the petitioner to generate Form C declaration under the Central Sales Tax Act, 1956 - purchase of Extra Neutral Alcohol (ENA) effected from outside the State of Tamil Nadu - HELD THAT:- The product supplier of ENA have been following the Central Sales Tax Act and have paid the tax accordingly. In the present case, the petitioner's supplier also paid the tax under the CST Act and their assessment have been pending for the reason that they have not furnished Form 'C' by the petitioner due to the reason that the respondents have blocked the portal. As contended by the learned Additional Advocate General, the fact remains that no decision has been taken by the GST Council with regard to whether ENA has to be included in the CST regime or excluded. All the ....... + More

Stay of Demand / Waiver of pre-dposit - Validity of assessment order - compliance with the condition of pre-deposit of 25% of the additional demand under Section 62 (5) of the PVAT Act - HELD THAT:- The balance sheet for the financial year 2020-21 placed on record by the petitioner (P-6) is not being disputed by the respondent. It is not in dispute that if the petitioner will be forced to pay 25% pre-deposit, he will not be able to pay the instalments of the loan. He is also paying GST regularly to the department and if he will shut down the business, it will lead to cancellation of GST registration. Thus, the condition of 25% pre deposit is liable to be modified, keeping in view the fact that the petitioner is in hug debt. In the present case, the petitioner is in debt and is paying instalments of loan regularly and this fact is no....... + More

Validity of assessment order - exigibility to tax under the Delhi Tax on Luxuries Act, 1996 - Club and Association service - doctrine of mutuality - HELD THAT:- While we find no ground to doubt the principles of mutuality as were explained in Calcutta Club and which constitutes the foundation for the decision handed down by the Kerala High Court in Madhavaraja Club, we find that the petitioner did not question the validity of the provisions of the Act as it originally stood and which extended the incidence of tax to the provision of residential accommodation in a club. If it were the contention of the petitioner that the tax on the provision of such residential accommodation could not be levied, it was incumbent upon it to question the validity of the provisions of the Act as they originally stood. However, and in the absence of suc....... + More

Opening of assessment orders - Section 49(3) of the Chhattisgarh Value Added Tax Act, 2005 - HELD THAT:- It would be worthy to mention here that the provisions of the VAT Act of Orrisa and Chhattisgarh are not pari-materia whereas the provisions of VAT Tax of Madhya Pradesh and Chhattisgarh are analogous. In the present case, subsequent to the assessment order dated 29.12.2015; the petitioner preferred the appeals before the Appellate Deputy Commissioner, and those appeals were allowed vide orders dated 03.08.2017, 08.08.2017 and 09.08.2017, respectively. Surprisingly, the revenue did not contest the Appellate Deputy Commissioner's orders for a significant period and vide orders dated 29.01.2019 and 05.11.2018, show cause notices were issued to the petitioner while exercising the power under Section 43(3) of the Act, 2005. Howev....... + More

Demand to deposit 10% of the balance tax demanded for the years, 2014-15 2015-16 - validity of Ext. P6 conditional order - HELD THAT:- It is evident from a bare perusal of first proviso to sub-section (1A) of Section 60 of the KVAT Act that the pre-deposit amount, if any, already remitted under Section 55, (ie; at the time of filing of the first appeal), shall be adjusted towards the amount to be remitted under the sub-section. Since the petitioner had submitted that he had already remitted 20% of the amount demanded during the filing of first appeal, he has to be exempted from paying any further amount. Hence, we are of the considered opinion that the Original Petition (TAX) is to be allowed. The condition imposed by the third respondent in Ext. P6 to deposit 10% of the balance tax demand for both the years is set aside, if the petitioner had already remitted the amount under section 55 of the KVAT Act - Petition disposed off.

Validity of order beyond the scope of Show cause notice - Statutory time limit for filing of appeal already expired - No reply filed to the SCN - the issue regarding processing charges liable for TDS under Section 13(1) of the Act, not raised in SCN, but is included in the impugned order - violation of principles of natural justice - HELD THAT:- If a notice was issued with regard to any aspect, the same has to be answered by the Assessee and it is for the Department to raise all the issues or queries by virtue of a show cause notice or by any other form and sought for the reply of the Assessee. However, in the present case, the Department had brought up the aforesaid issue of a sum of Rs. 76,62,986/- towards processing charges which liable for TDS, only in the impugned order and the same was not at all raised in the show cause notices........ + More

Constitutional validity of levy of entry tax - power of the state legislature - Article 304(a) of the Constitution - non-obstante clause - interpretation - concept of compensatory tax - HELD THAT:- This appeal is dismissed in view of the majority judgment passed in JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [ 2016 (11) TMI 545 - SUPREME COURT] by taking note of the fact that notice in this appeal was limited only to the question of levy of entry tax and no other issue is to be considered in the appeal. Application disposed off.

Maintainability of appeal - appeal dismissed on the ground that appellant failed to pay the amount of pre-deposit ordered by the Tribunal - Section 73 of the GVAT Act - HELD THAT:- The Tribunal has not given any cogent reason as to how the prima facie case of the appellant is considered while determining the amount of pre-deposit. This Court in case of Kavya Marketing [ 2022 (4) TMI 1202 - GUJARAT HIGH COURT] has held We have noticed that while deciding the admission of appeals on merits, the first appellate authority summarily dismissed the appeal on the ground of non-payment of pre-deposit, and when such order is challenged in second appeal before the Tribunal, it is incumbent upon the Tribunal to examine the prima facie case and thereafter, to arrive at the decision with regard to insistence of payment of pre-deposit for enterta....... + More

Exemption of tax at 100% on total eligible production sold under CST Act - Application of pro-rata in the circumstances of increase of capacity and increase in investment - HELD THAT:- Respondent is claiming exemption and has been granted exemption earlier as per notification issued under Section 8(5) of the CST Act and as per the 1993 package scheme of incentives. Admittedly, there is no provision for reduction of exemption either under the 1993 package scheme of incentives or under the CST Act. This has not been referred to either by the Assessing Authority or Joint Commissioner of Sales Tax (Appeal) Aurangabad. It is also not in dispute that the notification issued under Section 8(5) of CST Act in the year 1980 is not amended / modified / withdrawn at any point of time. Therefore, the Tribunal was correct in holding that the pro-rat....... + More

Dishonour of Cheque - no proper service of notice - complainant has not proved his case - do the question of rebuttal arise? - HELD THAT:- Once the cheques are placed before the Court and the petitioner has not denied the signatures available in the cheques, except a general denial that he has not issued the cheques, he has not given any explanation. The Trial Court has rightly drawn the presumption under Sections 118 and 139 of Negotiable Instruments Act and once the issuance of cheque is proved by the complainant, the same has to be rebutted and no such rebuttal evidence is placed by the petitioner. Though he has been examined before the Court, in his chief evidence, except denying the service of notice and issuance of cheques, no material is placed before the Court to substantiate this contention. The First Appellate Court also h....... + More

Dishonour of Cheque - Acquittal of accused - insufficient funds - trial Court has recorded the statement accused/respondent on the basis of affidavit instead of examination-in-chief - Section 145 of Negotiable Instruments Act, 1881. Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law? - HELD THAT:- On perusal of the provisions of Section 145 of Negotiable Instruments Act, 1881, it is clear that the trial Court has not followed the provisions of Section 145 of the said Act, and the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW1, along with the material contradiction of PW2, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law,....... + More

Dishonour of Cheque - Amount of cheques are not paid even after statutory notice was served - presumption in favour of complainant - rebuttal of presumption - exercise of jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India - section 138 of NI Act - HELD THAT:- The Court after prima facie verifying material on record issued process for the offence punishable under section 138 of N.I.Act. The trial of the offence is at large before the learned Trial Court. It is to be noticed that in offence under section 138 of N.I.Act, provision of law provides for presumption under section 139 of N.I.Act - The complainant being holder of the cheques and in view of the fact that signature on the cheques is not denied by the accused / petitioner, legal presumption shall be drawn that cheques were issued for discharge of....... + More

Dishonour of Cheque - Vicarious liability of director - Section 141(1) of the Negotiable Instruments Act, 1881 - HELD THAT:- Mere extracting the expression used in Section will not satisfy the requirement to hold a director vicariously liable for the offence under Section 138 of Negotiable Instruments Act, 1881. The averment of the complaint must satisfy the test, whether there are averments to prima facie satisfy the Court taking cognizance that the person deemed to be guilty of offence have role in the conduct of the business and in charge of the company - As far as the instant case, the cheque is for the discharge of the loan advanced to the company for its business purpose. The petitioner had stood guarantee for the loan advanced. She cannot deny knowledge of the borrowing or issuance of cheque just because she is not the signatory of the subject cheque. This Criminal Original Petition is dismissed.

Dishonour of Cheque - presumption with regard to existence of consideration amount - onus to rebut the presumption - shifting the burden upon the original accused to prove his case beyond reasonable doubt - HELD THAT:- While responding to such defence, the complainant has fairly accepted the fact about the actual outstanding amount dues from the complainant to be Rs.8,99,000/-, whereas the cheque in dispute appears to be figures of Rs.9,99,000/-. In the opinion of this Court, the aforesaid contradiction goes to the root of the matter. It straightway hit the presumption drawn in favour of the complainant under Section 118(a) of the Negotiable Instruments Act, which permits the Court to raise presumption with regard to existence of consideration amount. Section 139 of the Negotiable Instruments Act further permits the Court to raise pres....... + More

Dishonour of Cheque - lack of territorial jurisdiction to try the case - bone of contention by the petitioners is that the complainant who was initially maintaining his account in Nanganallur Branch of Indusind Bank, had given a request on 12/04/2022 to transfer his account to Kilpauk Branch - HELD THAT:- At the outset it has to be recorded that, the provisions of Negotiable Instruments Act, 1881 empowers the Magistrate to try complaints under Section 138 of NI Act summarily. Therefore, the trial Court, which has taken cognizance of the complaint and proceeded to try as summary trial, is well within the law and Clause (m) of Section 461 of Cr.P.C will not apply to the facts of this case - At the most, it could be error of taking cognizance of a complaint under Section 190 (1)(a) of Cr.P.C and proceeding thereon. Such irregularity will ....... + More

Dishonour of Cheque - validity of acquittal of accused - seeking reversal of conviction imposed - HELD THAT:- The respondent did not refuse the case of the appellant in his chief examination and he took defence stating that the case was filed with other ulterior motive to deny payment of sales commission which was allegedly due to him. The respondent, in his cross-examination, has admitted that the purchase orders and other defence documents of the respondent did not contain any signatures, which was not credible enough to prove that the respondent has no liability with the appellant. The respondent has admitted in his cross examination, the modus operandi followed by Ex.P.5 to Ex.P.10 and Ex.P.18 to Ex.P.21 which are invoices and stock transfer challans - the defence raised by the respondent also fails to ground for the reasons dis....... + More

Dishonour of Cheque - conviction of accused - settlement arrived at between the parties - compounding of the case - HELD THAT:- Having taken note of the fact that the petitioner accused and the complainant-respondent have settled the matter, the complainant has received the entire amount of cheques and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accused-petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT ], wherein the Hon ble Apex Court has held since Section 147 was inserted by way of an amendment to a special law, the same will override the eff....... + More

Dishonour of Cheque - Oreder of conviction and sentence of accused - insufficient funds - seizure of account - payment stopped by Court order - payment stopped by drawer - evidence led by the petitioner-accused regarding the reason behind the dishonour of cheque or not - rebuttal of presumption - seeking dismissal of all the revision petitions - HELD THAT:- It is in the light of the legal position that it is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof beyond reasonable doubt and rather, he is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidenc....... + More

Suit for recovery along with an interest at the rate of 12% per annum from the date of the suit till the date of the decree and thereafter, at the same rate till the date of its realisation - liable to pay the dues of Sheela Venugopal from the estate inherited by them - HELD THAT:- In the instant case, the court did not take up the risk of doing the job of comparative analysis of the disputed signature by itself. Instead they were sent to expert analysis and hence there is no harm in recording the finding of the expert as the first step. But accepting the findings of the expert is the second part of the exercise. Usually, there can not be any reason to disregard the opinion of the expert, unless there is any patent defect or irregularity is seen to be present in the analysis or established so by the defendants. The first defendant has ....... + More

Acquiring of assets disproportionate to known source of income - public servant - HELD THAT:- It is a settled preposition of law that in case of disproportionate assets acquired by the Public Servant, the initial burden is on the prosecution to prove objectively the property found in possession of the accused were disproportionate to his known sources of income. After meticulous examination, this Court able to find that, if at all any benefit in error of assessment regarding the value of assets acquired during the check period to be given, it can only be to a tune of Rs. 1,99,260/- rounded off to Rs. 2 lakhs which is in respect of Architect fees and the value of household articles claimed to be received as gift. Even, if concession of Rs. 2 lakhs is given to the value of assets acquired during check period, the disproportionality w....... + More

Dishonour of Cheque - conviction of appellant - Seeking acquittal from the charge under Section 138 of N.I. Act - HELD THAT:- From perusal of the record, it reveals that the statement of the complainant Jagdish Gupta (PW-1) is well supported by the cheque (Ex.P-1), notice (Ex.P-2 and P-3), postal receipt (Ex.P-4), letter (Ex.P-5). Applicant did not examined any witness before the trial Court and he did not reply the notice (Ex.P-2 and P-3), therefore, there is no reason to disbelieve the statement of Jagdish Gupta (PW-1) and the documentary evidence available on record, therefore, on the basis of the aforesaid evidence, the trial Court has rightly held that the applicant has committed offence under Section 138 of N.I. Act. On perusal of the record, the submission of the learned counsel for the applicant appears to be just and proper....... + More

Dishonour of Cheque - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- While exercising the powers under Section 482 Cr.P.C. and from perusal of the complaint under Section 138 Negotiable Instruments, Act, prima facie case is made out against the applicant herein in view of the presumption under Section 139 Negotiable Instruments, Act and the conditions of Section 138 Negotiable Instruments, Act are satisfied, therefore, there is no ground for interfering in the summoning order passed by the learned Magistrate, hence, the instant application is devoid of merit and is hereby dismissed. Since, the instant complaint case is pending since 2019, learned Magistrate is directed to proceed with the matter in accordance with law and particularly, in accordance with the provisions of Section 143 of Negotiable Instruments Act and try to conclude the said proceeding, expeditiously. Application dismissed.

Allegation against the officials of four public sector oil companies viz. IOCL, HPCL, BPCL and IBP - Respondent Accused were discharged by the CBI Court - Sale of High Speed Diesel (HSD) to various private industries of three States viz. Gujarat, Maharastra and Madhya Pradesh at concessional rates of sales tax - non-compliance with the mandatory requisite permission from the Ministry of Petroleum Natural Gas - Revenue loss to Government - HELD THAT:- In the case of MOHD. HADI RAJA VERSUS STATE OF BIHAR AND ORS. [ 1998 (4) TMI 576 - SUPREME COURT] , the Apex Court observed that the importance of the public undertaking should not be minimised. It is observed that the government's concern for the smooth functioning of such instrumentality or agency can be well appreciated but on the plain language of Section 197 of the Code of Crimi....... + More

Condonation of delay of around 479 days in presentation of the appeal - whether the first respondent had shown sufficient cause for which the appeal could not be presented within the prescribed period of limitation? - HELD THAT:- The High Court s decision to condone the delay on account of the first respondent s inability to present the appeal within time, does not suffer from any error warranting interference. STATE OF NAGALAND VERSUS LIPOK AO [ 2005 (4) TMI 321 - SUPREME COURT] arose out of an appeal where this Court condoned the State s delay of 57 days in applying for grant of leave to appeal before the high court against acquittal of certain accused persons. This Court observed that in cases where substantial justice and a technical approach were pitted against each other, a pragmatic approach should be taken with the former b....... + More

Seeking grant of bail - Smuggling - supply of Ketazee 500 injections - recovery of Pseudoephedrine Hydrochloride, which is a controlled substance under the NDPS Act, and Ketamine Hydrochlroide, which is psychotropic substance under the NDPS Act - applicability of Section 37 of the NDPS Act - HELD THAT:- In N.C. Chellathambi v. N.C.B. [ 2005 (4) TMI 647 - DELHI HIGH COURT] , this court granted bail to the applicant in a case of recovery of Ephedrine, a controlled substance. In view of the recovery of Pseudoephedrine, which is a controlled substance, this Court is of the opinion that Section 37 of the NDPS Act will not be attracted in the present case as the allegations with respect to the present applicant are covered under Section 25A of the NDPS Act. In view of the facts and circumstances of the present case, the applicant is ad....... + More

Dishonour of Cheque - insufficient funds - clubbing of three cheques in a single complaint - Pre-summoning evidence - HELD THAT:- Since it is settled law that the NI Act and the provisions therein, including that of Section 138 NI Act are pertaining to a Special Act, they have to be mandatorily complied with. As per the facts involved, though the first cheque issued on 15.12.2016 was dishonoured on 23.12.2016 and the Legal Notice dated 17.04.2017 qua it was barred by limitation, however, admittedly, since all the subsequent three cheques issued on 15.01.2017, 15.02.2017 and 15.03.2017 were dishonoured thereafter only on 24.03.2017, the same Legal Notice dated 17.04.2017 qua them was well within the prescribed statutory period. The said Legal Notice being valid, the subject complaint qua the said three cheques also being well within ....... + More

Deposit of interim compensation under Section 143-A(2) of the Negotiable Instruments Act, 1881 - HELD THAT:- Perused the Section 143-A of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018). As per said Amendment Act, trial Court is vested with power to direct accused person to deposit interim compensation not exceeding 20% of the amount of the cheque. Section 143-A (3) provides that interim compensation shall be paid within sixty days from the date of order under Sub-section (1) and Court may also extend the said period if sufficient cause is being shown by the drawer of the cheque. Section 143(4) lays down that if drawer of cheque is acquitted, Court shall direct the complainant to repay to the drawer the amount of interim compensation with interest at the bank rate as published by the Reserve Bank of India, prevalent at th....... + More

Dishonour of Cheque - different cause of action for different seven cheques - main ground for impugning the orders is that a single complaint could not be filed for seven cheques which are stated to have been issued by the petitioner/accused as the cause of action for each cheque is different - HELD THAT:- The cheques purportedly issued by the accused form part of a single transaction or different one cannot be finally determined by this Court at this stage though the complainant in the complaint mentions of issuance of cheques in pursuance to the transactions between him and the accused. The provisions of Section 219 Cr.P.C would apply in the case in hand so as to knock out the case of the complainant wherein seven cheques have been mentioned to have been issued and get dishonoured cannot be adjudicated upon in the present petition. T....... + More

Dishonour of Cheque - seeking permission to compound the offence - Section 147 of the Negotiable Instruments Act, 1881 - HELD THAT:- The offence under Section 138 of the NI Act can be compounded at any stage and overrides the effect of Section 320(9) of the Cr.P.C. (which otherwise provides that no offence shall be compounded except as provided by the Section), in view of the fact that Section 147 of the NI Act was inserted by way of an amendment to a special law and the Section commences with a non obstante clause. Consequently, in light of the compromise Petition filed before this Court, enumerating the terms of consent and the submissions of the Learned Counsel for the parties that the settlement was arrived at between the parties without duress on either party from any quarter, the compromise Petition is accepted and taken on recor....... + More