Assessment in the hands of representative / agent - Chief Financial officer (CFO) of the non-resident assessee - According to the appellant, the Chief Financial Officer was questioned about transfer of shares of the appellant by Clayton Dewandre to WABCO, Singapore, even though the Chief Financial Officer was not employed with the appellant during the Financial Year 2013-14 and had no knowledge of the transaction. Whether the writ petition ought to have been dismissed on the sole ground that the appellant had a right of reply to the show cause notice. The answer to the aforesaid question has to be in the negative, for the reasons discussed hereinbelow? - Division Bench held that no case was made out by the Department that in respect of transfer of share to a third party, that too outside India, the Indian company could be taxed when the Indian company had no role in the transfer HELD THAT:- Delay condoned. Leave granted.

Deduction u/s 80HHC - supporting manufacturers - whether the assessee being supporting manufacturers, are to be treated on par with the direct exporter for the purpose of deduction of export incentives under Section 80HHC? - HELD THAT:- So far as “supporting manufacturers” are concerned, under Section 80HHC(1A), where any Export House or Trading House has issued a certificate that the supporting manufacturer has, in fact, supplied such goods or merchandise for export, they shall also be allowed a deduction to the extent of profits referred to derived by the assessee from the sale of goods or merchandise to the Export House or Trading House. The manner of deduction, insofar as the exporter is concerned, is laid down in subsection (3) which when read together with its provisos make it clear that profits that are derived from suc....... + More

Validity of order of Tribunal staying the Show Cause Notice - Prohibition of Benami Property Transactions Act - HELD THAT:- The show-cause notice issued on 21st June 2019, is under Section 26(1) of the Benami Act and not under Section 26 (3). The reasons for this are not far to seek. The scheme of the Benami Act, under Section 5, provides for confiscation of any property which is subject matter of a benami transaction, by the Central Government. An Adjudicating Authority is appointed under Section 7. The proceedings for confiscation are initiated by the Initiating Officer under Section 24 of the Benami Act. If the Initiating Officer passes a provisional order of attachment of the property, he draws up a statement of case and refers it to the Adjudicating Authority under Section 24(5) of the Benami Act. The second level of adjudication the....... + More

Rectification u/s 154 - Assistant Commissioner, observed that rectification application assumes character of a matter being sub-judice, it needs to be dismissed - HELD THAT:- In view of the plain language of section 154, there is no embargo on the power of amendment if an appeal or revision is merely pending. The rejection of the rectification application on this ground was unwarranted. We are informed that the Appeal is still pending. The Assistant Commissioner has failed to exercise the jurisdiction vested in him and thus the impugned order will have to be set aside and the application will have to be decided. Writ Petition succeeds. The impugned order dated 13 June 2019 is quashed and set aside. The rectification application filed by the Petitioner under section 154 of the Income Tax Act, 1961 stands restored to the file of Assistant Commissioner of Income Tax 21(2), Mumbai to be disposed of on its own merits.

Deduction u/s 80P(2)(a) (i) - Appellant is admittedly a Primary Agricultural Co-operative Credit Society Registered under Tamil Nadu Co-operative Societies Act - HELD THAT:- Issue decided in M/S. S. 1234 UDAYAPTTI PACCS LTD., SALEM VERSUS THE INCOME TAX OFFICER, WARD 1 (4) , SALEM-7. [2019 (8) TMI 186 - MADRAS HIGH COURT] wherein as referred case of M/S. AA 713 THE KODUMUDI GROWERS COOPERATIVE BANK LTD., KODUMUDI VERSUS THE INCOME TAX OFFICER, WARD-II (1) , ERODE. [2018 (12) TMI 127 - MADRAS HIGH COURT] wherein held activity done by the appellant society cannot be truncated from the activity as a credit society and we are of the considered view that the Authorities below as well as the Tribunal committed an error in rejecting the stand taken by the appellant/ assessee. - Decided in favour of assessee.

Special audit u/s 142(2A) - as per the AO the questionnaire was remain conclusively unanswered - contention of the Petitioner was that there was no complexity in the books of account which would warrant the Respondent No. 1 to direct special audit - denial of natural justice - HELD THAT:- on the basis of the reasons recorded in the impugned order, it cannot be said that there was no genuine attempt on the part of the Assessing Officer to understand the nature of his business, its method of accounting, or to understand the nuances of the books of accounts or documents. The impugned order clearly reflects the reasons for ordering a special audit. AO initially issued a notice under Section 142(1) on 03.08.2018 along with detailed questionnaire including the reason for selection of case for scrutiny under Section 143 (3). Thereafter, a fresh ....... + More

Disallowance u/s 40(a)(ia) - Additions for non-deduction of TDS - retrospectively or prospectivity - second proviso to Section 40(a)(ia) of the Act inserted by Finance Act, 2012 whether is clarificatory and retrospective in nature - whether disallowance under Section 40(a)(ia) of the Act by the Tribunal is justifiable where the recipient of the amount has already discharged his tax liability therein? - HELD THAT:- Keeping in mind, the judgment of the Hon’ble Apex Court in Vatika Township Private Ltd [2014 (9) TMI 576 - SUPREME COURT] the principle of fairness, we find no reason to deviate from the decision of the Hon’ble Delhi High Court in the case of Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] in which it was held that the second proviso to Section 40 (a) (ia) of the Act is declaratory and curativ....... + More

Addition u/s 56(2)(vii)(b) and Section 69B - Family Settlement Deed - on perusal of the Memorandum of Family Settlement (MFS) noted that assessee has acquired the Bungalow due to relinquishment of rights in the said property by three brothers of the assessee for Rs.NIL. - HELD THAT:- In this case, since there was a Family Settlement between the assessee and three brothers and they have acted upon Family Settlement Deed and distributed various properties among themselves and necessary rights and title are transferred in favour of each brother would show that parties have entered into genuine transaction. As per the Family Settlement Deed, it was agreed that property in question with superstructure shall be taken by the assessee and that as per the Settlement Deed, the assessee has to contribute a sum of ₹ 20 crores from his own resou....... + More

Addition on account of interest received on External Commercial Borrowings [ECB], extended to Indian borrowers - levy of Interest u/s 234B - HELD THAT:- The issue stands covered in favour of the assessee and against the Revenue held Assessing Officer himself had admitted by grossing up the ECB interest by the amount of tax borne by the borrowers that tax at source has been deducted. We are thus of the view that no interest under section 234B of the Act can be levied for the tax demand on account of ECB interest and interest under section 234B is also not chargeable since ECB interest received by the assessee from the borrowers was subject to tax deduction at source under section 195 of the Act. The Assessing Officer is thus directed to delete the addition made on account of interest received from ECB given to Indian borrowers Levy of inte....... + More

Disallowance on account of excess cane price paid to sugarcane suppliers - deduction u/s 37 - HELD THAT:- As referred to TASGAON TALUKA S.S.K. LTD. [2019 (3) TMI 321 - SUPREME COURT] we set-aside the impugned order on this score and remit the matter to the file of A.O for deciding it afresh as per law in consonance with the articulation of law by the Hon’ble Supreme Court in the aforenoted judgment. AO would allow deduction for the price paid under clause 3 of the Sugar Cane (Control) Order, 1966 and then determine the component of distribution of profit embedded in the price paid under clause 5A, by considering the statement of accounts, balance sheet and other relevant material supplied to the State Government for the purpose of deciding/fixing the final price/additional purchase price/SAP under this clause. The amount relatable t....... + More

Assessment u/s 153C - proof of incriminating material found in search - HELD THAT:- Conditions of Section 153C are not satisfied in this case. The A.O, therefore, rightly framed regular assessment u/s 143(3) after considering the incriminating material available on record. A.O. in para-2 with regard to addition of the interest on PDCs has mentioned that on perusal of the bills of payments of purchase consideration it was noticed that only part payments have been made while executing the sale deed and balance consideration was paid through PDCs. Therefore, the addition is made by the A.O. on the basis of the documentary evidences produced by the assessee with regard to the payments mentioned in the sale deed. A.O, therefore, correctly made assessment under section 143(3). A.O. has examined the evidences available on record and rightly came....... + More

Deduction u/s 80IB - commercial production of its original undertaking in the previous year relevant to Assessment Year 2001-02 - company is engaged in the business of a refinery and as it fulfills the required conditions u/s 80-IB(9)(iii) - HELD THAT:- Meaning of ‘mineral oil’ deserved to be considered in a wider manner. Moreover, the meaning of refining should be construed in the context of a refinery and it should not be restricted to simple purification process as opined by the Id AO and upheld by the Id CIT(A). The Id AO and the Id CIT(A) has held that ‘Naphtha’, the raw material used by the M S Plant is a ‘Petroleum Product’. The ‘Mineral oil’ would include petroleum and petroleum products. Moreover, the MS Plant of the assessee company is engaged in processes which fall within the mea....... + More

Disallowance of excess deduction claimed u/s 10AA r.w.s 80IA(10) - AO observed that the Appellant earned more than 'ordinary profits' to its associated enterprise ('AE') - HELD THAT:- AO was of the view that the assessee by showing such high OP/OC had earned super normal profits when compared with the margins of comparable companies. We find no merit in the observations of AO in this regard as the concept of PLI i.e. OP/OC which has been adopted by AO was relevant for comparability for transfer pricing analysis. The same cannot be used for holding the assessee to have earned super normal profits in carrying on its business for that. He has to look at net profits shown by assessee, which in the present year is 63% only. The learned Authorized Representative for the assessee pointed out that similar net profit range has been....... + More

Revision u/s 263 - MAT credit under section 115JAA - entitled to claim carried forward MAT credit of the amalgamating company - assessee challenged the reduction of MAT credit in an appeal filed before the first appellate authority - HELD THAT:- Commissioner (Appeals) the assessee had raised a ground claiming MAT credit pertaining to the assessment year 2006-07. While deciding the said ground, he has clearly observed that in the original assessment order, the Assessing Officer has not made any discussion on the issue. Accordingly, he directed AO to allow credit as per law. It is further seen, as against the MAT credit of more than ₹ 58 crore claimed by the assessee before the Commissioner (Appeals), the AO allowed credit for ₹ 20,12,95,237. In these circumstances, it cannot be said that the order giving effect to is nothing bu....... + More

Penalty u/s. 271B - Non compliance to provisions of section 44AB - assessee has shown entire receipt as income - assessee has received commission for which has neither got his books of account audited nor furnished report on such audit as required u/s 44AB - HELD THAT:- On a conjecture reading of provisions of section 44AB and Section 271B of the Act, we noted that it is a mandatory provision that the assessee should get his books of account audited having turnover of more than ₹ 60 lakhs. In the present case, undisputedly, the admitted facts are that the gross receipts of ₹ 64,16,667/- and ₹ 67,51,712/- for the assessment years 2010-11 & 2011-12 and the assessee did not audit his books of account during the relevant financial period. We are unable to see any safeguard in the said provisions in a situation when the a....... + More

Reopening of assessment u/s 147 - valid source of the amount used for repayment of loan amount - assessee claimed the source from the agricultural income, rental income and interest income were assessed to income tax. - HELD THAT:- From the perusal of the assessment order, it is clear that the AO assessed agricultural income, rental income and interest income and the same should be treated as amount available for repayment of loan in the absence of any evidence to the contrary. AO had not brought any material on record to demonstrate that the amounts were utilized for some other purpose. AO was not justified in making the addition without giving any valid reason. CIT(A) ought not have confirmed the action of the AO on the ground that repayment of loan amount was not accounted in the books of accounts, as this cannot be reason for making t....... + More

Addition made in the order u/s 143(3)/153A - proof of incriminating material unearthed during search - HELD THAT:- AO has not found any incriminating material during search on 30.08.2012 qua this assessment year against the assessee of ₹ 4,54,44,692/-. Therefore, since no assessment was pending on the date of search for AY 2009-10 on 30.08.2012 (date of search), the AO could not have made any addition without the aid of incriminating material unearthed during search qua the assessment year. Therefore, we do not find any infirmity in the order of the Ld. CIT(A) who has deleted the addition. See KABUL CHAWLA [2015 (9) TMI 80 - DELHI HIGH COURT] - Decided in favour of assessee.

Exemption u/s 10(23C)(iiiad) denied - admitted gross receipts for the year under consideration breaches the limit provided U/s 10(23C)(iiiad) - exemption u/s 11 - charitable activity - arrangement made by the assessee with THEAL under which the assessee agree to receive the services from THEAL for providing facility in running the schools - HELD THAT:- Even as per the admitted gross receipts for the year under consideration breaches the limit provided U/s 10(23C)(iiiad) of the act and therefore, the said benefit of provisions of Section 10(23C)(iiiad) would not available to the assessee. Accordingly to that extent we set aside the order of the ld. CIT(A) and restore the order of the Assessing Officer for denying the claim of exemption U/s 10(23C)(iiiad) of the Act. Receipt from THEAL - Entire arrangement between the assessee society and T....... + More

Addition u/s 40A(3) - excess cash payments - Business urgency to make cash expenditure exceeding permissible limits - HELD THAT:- Considerable cogency in the contention of the assessee that before the lower authorities the assessee has submitted that the factum of genuineness of payment where payee to whom payment made by assessee in prohibited made u/s. 40A(3), is also assessed with ACIT, Circle-2, Meerut where assessee is also assessed at Meerut itself, where there is no doubt on payment being received by identified seller which stands thoroughly uncontroverted. The sale deed are registered which evidences and confirms beyond pale of doubt the genuineness of payment aspect. Once the genuineness of payment is not in dispute and payee is identifiable from where payment is duly confirmed, rigors of section 40A(3) stands discharged. The aut....... + More

Capital gain arising on account of the succession of the firms - scheme of succession under section 47(xiii) - whether the assessee is entitled to the depreciation on the intangible assets acquired by it in the given facts and circumstances? - HELD THAT:- there is no requirement under the provisions of section 47(xiii) of the Act that the firms should be converted into the company. It is sufficient if the existing company acquires all the assets and liabilities of the partnership firms in the manner as provided under section 47(xiii) of the Act to claim the exemption from the capital gain. Similarly, even if the valuation of the technical know-how and the trademark is determined at nil value, then also there would not be any violation of holding the shares in the proportion of the capital in the firm as stood immediately before succession....... + More

Bogus LTCG - AO has received information about suspicious share transactions and on the basis of the same; he has disbelieved the claim of long term capital gains - HELD THAT:- Assessee has purchased shares through a broker named M/s Eden Financial Services and sold shares through Intime Equities Ltd. Thus, the purchase and sale of shares have been carried out through two different brokers. It is not the case of the AO that both the share brokers referred above have been identified as tainted brokers involved in fraudulent transactions. The assessee has earned speculation profit in the immediately preceding year through M/s Eden Financial Services also and the said profit has been used to purchase the shares of M/s Sunrise Asian Ltd. The assessee has offered the speculation profit for income tax purposes in the immediately preceding year ....... + More

Unexplained investment - loose paper was found from the premises of the assessee exhibiting the purchase of a property - HELD THAT:- As per the loose paper, the assessee has agreed for payment of 30% at the time of booking; 15% at the time of possession, and balance 55% in eight instalments from February, 2008 to September, 2008. Search was conducted on 11.2.2010, meaning thereby, all these instalments have been adhered to because first time assessee has disclosed cancellation of deal in the statement recorded on 3.5.2010. We could appreciate the case of the assessee had he produced refund of booking amount before the search, that is, if the assessee has demonstrated that payment of ₹ 1.70 lakhs paid through DD was received back by him before 11.2.2010. To some extent it could be appreciated that this paper was pertaining to negotia....... + More

Deduction u/s 54B - deduction neither been claimed by the assessee in the return of income nor has filed the revised return - case of assessee was picked up for scrutiny - CIT-A allowed the claim - HELD THAT:- No merit in the appeal filed by Revenue, wherein the matter has been decided by the CIT(A) observing that the assessee would be entitled to the aforesaid deduction under section 54B of the Act, in view of the dictate of the Hon’ble Bombay High Court in CIT Vs. Pruthvi Brokers & Shareholders [2012 (7) TMI 158 - BOMBAY HIGH COURT]. We find no error in the order of CIT(A) in this regard. CIT(A) was duty bound to allow the claim of assessee though not made in the return of income. It may be pointed herein itself that even the income from sale of agricultural land as either Long Term Capital Gains or Short Term Capital Gains, w....... + More

Addition on account of share capital money received u/s. 68 - as alleged assessee has failed to offer any explanation with regard to credit found in the nature of share capital - HELD THAT:- In the case of PCIT vs. Hi-Tech Residency Pvt. Ltd. [ 2018 (7) TMI 1347 - SC ORDER ] has considered identical issue and held that where an assessee company had discharged the onus of establishing identity, genuineness of transaction and creditworthiness of investors, no additions could be made u/s. 68. We, further, noted that although the Apex Court has not expressed any opinion, because of dismissal of SLP filed by the assessee, the fact of the matter is that this issue has been considered in the case of CIT vs. Lovely Exports (P) Ltd [ 2008 (1) TMI 575 - SC ORDER ] where the issue has been thoroughly examined in the light of provisions of section 68....... + More

Penalty u/s 271(1)(c) - Notice in the name of merged company - curable defect - HELD THAT:- Impugned penalty order passed by the AO in the name of “M/s. Padampat Gopal Krishna Ramapanti Organization Ltd. (Merged with Gohoi Buildwell Ltd.Now known as V3S Infratech Ltd.)” is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B; and hence order passed on amalgamated entity which ceases to exist is a nullity. Such an illegality cannot be cured on the ground that assessee participation in the proceedings as there cannot operate as an estoppel against law. Accordingly, impugned penalty order is quashed. - Decided in favour of assessee

Classification of service - Rate of GST - contract given to Shreeji Infrastructure India Pvt Ltd towards construction of residential quarters at 2x660 MW Shree Singaji Thermal Power Project Stage -II Khandwa - N/N. 11/2017 amended vide N/N. 20/2017, 24/2017 and 31/2017. HELD THAT:- The issue raised in the present application has been duly decided by this Authority in the matter of Application filed by IN RE: M/S. SHREEJI INFRASTRUCTURE INDIA (P.) LTD., [2018 (11) TMI 58 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH]. The applicant in the present application are the service receivers while M/s.Shreeji Infrastructure P.Ltd. are the service providers. This authority had ruled that "The works contract service of construction of 599 residential quarters allotted to the applicant (Shreeji Infrastructure P.Ltd.) by MPPGCL will merit classi....... + More

Classification of goods - Agriculture Knapsack Sprayer - whether classified under chapter sub heading No. 84248200 of the Custom/Excise Tariff Act or under entry 325 of Sch III or entry 195B of Sch II of Notification no. 1/2017 as amended? - rate of GST- Applicability of N/N. 01/2017-Central Tax (Rate) dtd. 28.06.2017 as amended vide N/N. 06/2018-CT(R) dtd.25.01.2018 and the corresponding notification issued under MPGST Act, 2017. HELD THAT:- The product in question is essentially a Mechanical Sprayer which can be carried on back and can be operated either by hand or through a battery. We find that there is no dispute to the classification of product, which even as per the own admission of the applicant would be under Chapter Head 8424 of the GST Tariff - even the applicable rate of GST is not disputed prior to 25.01.2018 as the product &....... + More

Provisional attachment of Bank Account - irregular availment of input tax credit - invocation of section 83 of CGST Act, 2017 - period between July 2017 and May 2019 - whether the respondent No.1 was justified in invoking Section 83 of the Act for the purpose of passing an order of attachment of the bank accounts? - revenue neutrality. HELD THAT:- Section 83 of the State GST Act empowers the Assessing Authority to make a provisional attachment of any property of the assessee during the pendency of any proceeding for the assessment or reassessment of any turnover, even though there is no demand outstanding against the assessee, if he is of the opinion that it is necessary to do so to protect the interest of the revenue. This provision has been made, in order to protect the interest of the revenue in cases where the raising of demand is lik....... + More

Proceedings against the transporter of goods - release of detained goods with vehicle on payment of applicable tax and penalty equal to 50% of the value of the goods, by the transporter - the owner of the goods does not come forward for such tax and penalty - case of writ petitioner is, that the transporter cannot be proceeded against even if the allegations against the owner of the goods i.e., dealer under TNGST Act, are true? HELD THAT:- As the vehicle and the consignment have since been released, this writ petition is disposed of preserving the rights of the writ petitioner to assail the aforesaid proceedings dated 20.08.2019 either by way of an appeal under Section 107 of TNGST Act or by way of a revision under Section 108 of TNGST Act - If the writ petitioner choses to assail the aforesaid proceedings in any one of the aforesaid mann....... + More

Classification of royalty payments - taxability - reverse charge mechanism - royalty payments to Government in respect of Mining lease under “Licensing services for Right to use minerals falling under the heading 9973 - liability of tax - contributions made to District Mineral Foundation (DMF) and National Mineral Exploration trust (NMET) as per MMDR Act, 1957. HELD THAT:- It is clear that the supply made by the government, i.e. the right to mine the resources is taxable under Section 9 of the Act and is within the meaning of the term ‘supply as covered by Section 7. That, in order to classify as a supply, two important conditions are to be met. First, it should be in the course or furtherance of business. It must also be noted that as per Section 2(17), inter alia, any activity undertaken by the Central Government in which th....... + More

Liability of IGST - Reverse Charge Mechanism (RCM) - Import of Consulting Services by the Directorate of Skill Development - services received by it from a provider of service located in a non taxable territory - place of supply of services - section 5(3) read along with N/N. 10/2017 IT(R) - HELD THAT:- The applicant is engaged in Business or profession as defined in the Section 2(17) of CGST Act. Further the supply might be chargeable to tax if it is falling under Notification No 11/2017 - Central Tax (Rate) dated 28lh June 2019. According to Section 5(3) of IGST Act, the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Ac....... + More

Classification of supply - charge of interest from customers for delayed payment - Interest charged on cost of securities is exempt under notification no. 12/2017 Central Tax(Rate) dated 28-06-2017 as amended. HELD THAT:- The additional amount being charged in delay of payment by whatever named called should be classified as principal supply and the classification of the same cannot differ from the original supply. Hence the additional amount charged on delayed payment shall be taxed as per original supply i. e. supply of Stock broking services. Applicability of Notification No. 12/2017 - HELD THAT:- Having regard to the nature of transaction it cannot be said that the share broker has extended any deposit, loans or advances to its clients hence the additional amount being charged cannot be treated as interest hence the exemption granted under entry no 27 of notification no 12/2017 is not applicable on the transaction on which advance ruling is sought.

Extension of time period for amending GST Tran-1 - transitional credit - despite making several efforts, the electronic system of the respondent no.2 did not respond, as a result of which the petitioner is likely to suffer loss of the credit that it is entitled to by passage of time - HELD THAT:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. List this matter on 17.10.2019.

Waiver of interest and late fee imposed - It is the case of the petitioner that the interest has been levied upon the petitioner without entering into the adjudicatory process as required under Section 73 of the CGST Act 2017 - alternate remedy of appeal u/s 107 of CGST Act - Notification No. 76/2018 dated 31st December, 2018 - HELD THAT:- As prayed for, learned counsel for the CGST is allowed four week’s time to file the detailed counter-affidavit in the matter - Till then, the operation of the order dated 22.05.2019, as contained in Annexure-10 to the supplementary affidavit, shall remain stayed. Put up the matter on 28.08.2019, awaiting the counter-affidavit in the matter.

Maintainability of appeal - service of order - appeal has been dismissed on the ground that certified copy of order in original has not been appended, whereas factually original order had been appended - Haryana GST Act - HELD THAT:- The learned State counsel on instructions from Shri Vijay Kumar Singh, Addl. Excise and Taxation Commissioner, Panchkula submits that Revisional Authority exercising the powers under Section 108 of Haryana Goods and Services Tax Act, 2017 has annulled impugned order while remanding back to Appellate Authority for adjudication of appeal on merits. Appeal disposed off.

Permission for withdrawal of petition - Levy of service tax - payment of element of service tax on the rented property for commercial purposes - GST Act - HELD THAT:- Having failed to convince this Court to invoke writ jurisdiction, learned counsel for petitioners prays for permission to withdraw writ petition so as to enable his clients to avail proper remedy. Petition dismissed as withdrawn.

Maintainability of appeal - appeal dismissed on the ground that certified copy of order in original has not been appended, whereas factually original order had been appended - HELD THAT:- The learned State counsel on instructions from Shri Vijay Kumar Singh, Addl. Excise and Taxation Commissioner, Panchkula submits that Revisional Authority exercising the powers under Section 108 of Haryana Goods and Services Tax Act, 2017 has annulled impugned order while remanding back to Appellate Authority for adjudication of appeal on merits. Writ is disposed of as infructuous.

Maintainability of appeal - appeal dismissed on the ground that certified copy of order in original has not been appended, whereas factually original order had been appended - HELD THAT:- The learned State counsel on instructions from Shri Vijay Kumar Singh, Addl. Excise and Taxation Commissioner, Panchkula submits that Revisional Authority exercising the powers under Section 108 of Haryana Goods and Services Tax Act, 2017 has annulled impugned order while remanding back to Appellate Authority for adjudication of appeal on merits. Writ is disposed of as infructuous.

Release of conveyance alongwith the goods - Part payment already made - Section 129 of the GST Act - HELD THAT:- The writ applicant is entitled to some interim relief in the matter. An amount of ₹ 1,64,934 has been paid by the writ applicant towards tax and penalty as determined by the authority under Section 129 of the GST Act. The payment receipt is placed on record. The conveyance and the goods are ordered to be released forthwith, subject to the final outcome of this writ application. Rule returnable on 24th October, 2019.

Provisional attachment of property - Section 83 of the GST Act, 2017 - blockage of input tax credit - whether the State Tax Officer 1, Unit 44, Vadodara could have exercised powers under Section 83 of the GST Act, 2017 for the purpose of provisional attachment of the property owned by the writ applicant? Power of Officers u/s 5 of GST Act, 2017 - Delegation of power - HELD THAT:- Delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Black’s Law Dictionary as “the act of entrusting another with authority by the empowering another to act as an agent or representative”. Section 83 makes it abundantly clear that it is the....... + More

Grant of Bail - irregular availment of input tax credit - alleged offence u/s 132(1)(b) and 132(1)(c) of CGST Act - requirement of custodial interrogation - HELD THAT:- Section 132(1)(b) provides that whoever issues any invoice or bill without supply of goods or services in violation of the provisions of the Act leading to wrongful availement or utilisation of Input Tax Credit or refund of tax shall be punished - section 132(I)(c) provides that whoever avails Input Tax Credit by using such invoices or bills referred to in clause (b) shall be punished. In the case in hand, as per the reply filed by the department, neither any invoice or bill has been issued by the applicant/accused nor any Input Tax Credit was availed by the applicant/accused himself or by any firm in which he is a proprietor or partner. The entire case put forth by the de....... + More

Extension of time limit for filing of GST Tran-1 - transitional credit - petitioner has alleged in the petition that despite making several efforts, the electronic system of the respondent no.2 did not respond, as a result of which the petitioner is likely to suffer loss of the credit that it is entitled to by passage of time. HELD THAT:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. List this matter on 14.10.2019.

Correction of mechanism of Common Portal of GST in consonance with Notifications dated 31.12.2008 and 11.1.2019 - HELD THAT:- Notice of motion for 27.9.2019. To be taken up in urgent list.

Refund of IGST - Adjustment of amount already availed by the petitioner on account of higher rate of duty drawback - HELD THAT:- The respondents are directed to pay the balance amount i. e. , IGST minus higher rate of duty drawback already availed by the petitioner within the time granted by this Court and avoid the additional burden of interest payment on IGST refund. Petition disposed off.

Provisional attachment to protect revenue - Maintainability of petition - alternative remedy of appeal - Section 83(1) read with Section 5(3) of Karnataka Goods and Services Act of 2017 - HELD THAT:- Petitioner has a remedy of an appeal as provided under Section 107 of the Act, which has not been exhausted. The petitioner has not approached this Court with clear picture, whether he had option to file appeal or not, having regard to Section 107 of the Act. The petitioner is relegated to the Appellate Authority. Petition disposed off.

Refund in cash - unjust enrichment - refund claim amounts in cash which have been ordered to be credited to the Consumer Welfare Fund on the ground that the appellants were not able to discharge the burden of unjust enrichment - HELD THAT:- The comparative analysis of prices, in a situation of change in the tax rates, is absolutely important to decide whether the additional tax burden in situation of increase in tax rates is being shifted to the buyer or not. This also has to be the important parameter to determine whether in a given situation whether there is a presence of unjust enrichment or not. We find that in the case at hand, the prices (both dealer price and RSP) indicate that the burden of enhanced rate of CVD has not been shifted to the buyers and, therefore, there cannot be any element of unjust enrichment. Hon’ble Suprem....... + More

Valuation of imported goods - marble slabs - rejection of declared value - enhancement of value based on contemporaneous imports - HELD THAT:- The findings of the original authority, which was upheld in the impugned order, have based the enhancement of assessable value on imports that were contemporaneous as well as others that were not contemporaneous. Moreover, despite the enhanced value being in excess of the threshold prescribed in the Foreign Trade Policy for free importability, the first appellate authority has confirmed the actions of the original authority in confiscating the goods for violation of the import policy prescription. The confiscation of 21.71 sq meter of ‘marble slabs’ that were in excess of the declaration is sustainable in law. The enhancement of the assessable value appears to have relied upon four bill....... + More

SEZ unit - Amendment in shipping bills - MEIS benefit - Section 149 of the Customs Act, 1962 - HELD THAT:- As far as examination of the consignment is concerned during the relevant time, there was no provision for physical examination of the cargo exported from SEZ unit under MEIS Scheme and that requirement was incorporated only on 19.09.2018 vide Notification G.S.R. No. 909 (E) dated 19.09.2018. Further, the entire export took place prior to incorporation of the physical examination requirement. Further, in the case of SEZ, the entire operations are under the control of Development Commissioner and the officers of the Customs posted therein and they can easily verify the entire records but the same was not done in this case. The impugned order denying the amendment of the Shipping Bills is not sustainable in law - Appeal allowed - decided in favor of appellant.

Refund of provisional assessed duty deposited under protest - period of limitation - condonation of delay - HELD THAT:- Delay caused in filing the court fee as well as delay in filing affidavit of valuation is condoned - application disposed off.

Prayer of petitioner to be interrogated in the presence of an Advocate - service of notice u/s 108 of CA - HELD THAT:- The Supreme Court in the case of VIJAY SAJNANI & ANR. VERSUS UNION OF INDIA & ANR. [2012 (4) TMI 706 - SUPREME COURT] has directed that during interrogation of the petitioner(s), his/their counsel would be allowed to be present within visible distance, but beyond hearing range. The petitioner would be interrogated in presence of an advocate at a visible, but not audible distance in relation to the interrogation by the Officers of the DRI in accordance with the directions given by the Hon'ble Supreme Court in Vijay Sajnani - it is also directed that the proceedings be video-graphed. Petition disposed off.

Permission to petitioner to have an advocate at visible but not audible distance during his interrogation by the Officers of the Directorate of Revenue Intelligence (DRI) - HELD THAT:- The Supreme Court in the case of VIJAY SAJNANI & ANR. VERSUS UNION OF INDIA & ANR. [2012 (4) TMI 706 - SUPREME COURT] has directed that during interrogation of the petitioner(s), his/their counsel would be allowed to be present within visible distance, but beyond hearing range. The petitioner would be interrogated in presence of an advocate at a visible, but not audible distance in relation to the interrogation - the proceedings directed to be video-graphed - petition disposed off.

Import of one used motor cycle under Transfer of residence (TR) facility - non-fulfillment of condition for availing the relaxation from import conditions - under-valuation - second adjudication proceedings initiated vide impugned order related to house hold items brought by appellant - HELD THAT:- In the case of house hold items they were subject to adjudication and released on payment of fine and penalty then the second adjudication proceedings initiated by the impugned order related to house hold items are not sustainable in law. Further, the appellant has proved on record that he is entitled to claim the benefit of TR because as per the Import Policy, the appellant is entitled to bring vehicle after staying abroad for the minimum period of 2 years - In the present case, the appellant has proved that he is staying abroad for the last m....... + More

Rebate - Whether the petitioner is entitled to rebate of duty under Rule 18 of the CER, having availed of the benefit of N/N. 93/2004-Cus dated 10th September, 2004 issued u/s 25 (1) of the CA, 1962? - It was held in the case that Once an export transaction has been used for seeking discharge of Advance Authorizations issued under the CA, the same export transaction cannot be used for seeking rebate of duty under CER, as the rebate, in this case, is subject to the conditions and limitations, as specified in Notification No.93, which clearly requires that ‘the facility under Rule 18 or Sub-rule (2) of 19 of CER, 2002’ ought not to have been availed. HELD THAT:- No case is made out to interfere with the impugned order(s) passed by the High Court - SLP dismissed.

Extension of anti-dumping circumvention duty - Relevant date of imposition - import of Cold-rolled Flat products of width not covered under customs notification dated 11 December 2015 originating in or exported from China PR, Japan, Korea, European Union, South Africa, Tiwan, Thailand and USA - validity of imposition of ADD on the PUI from the date of publication of the notification on 24 October, 2017 and not retrospectively from the date of initiation of the anti-circumvention proceedings on 19 February, 2016 - Rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. HELD THAT:- Section 9A (1) of the Tariff Act empowers the Central Government to impose anti-dumping duty. Section 9A (1A) of the Tariff Act deals with circumvention of anti-....... + More

Imposition of penalty u/s 112(a) and 114AA of CA - Misdeclaration of imported goods - Firecrackers - prohibited goods or not - role attributed by the Revenue to the present appellant is that he filed the online bill of entry for the said import and as such must have been aware of the fact that the goods were being declared - HELD THAT:- The use of the expression ‘must have’ is indicative of the fact that Adjudicating Authority is not sure about the role played by the said appellant. Otherwise also the filing of online bill of entry by itself cannot be held to be punishable offence unless Revenue produce evidences to establish that the person concerned, by his active involvement, aided and abated the importer. There is no justifiable reasons to impose penalty upon the appellant - appeal allowed - decided in favor of appellant.

Recovery of Customs Duty - Section 143 (3) readwith Section 142 of the Customs Act, 1962 - the basic ground on which the customs duty has been confirmed and ordered for recovery, is for the reason that the appellant have failed to adduce the evidence of fulfillment of their export obligation under advance authorization - HELD THAT:- The claim of the appellant that they have fulfilled the export obligation with regard to the advance authorization dated 10 January 2013 and, therefore, there is no cause for demanding customs duty against the duty free imports effected by them under the above-mentioned advance authorization - it will be proper if the original Adjudicating Authority considers the claim made by the appellant regarding fulfillment of the export obligation and decide the matter afresh. Matter remanded for denovo adjudicating for taking into account the claims of export obligation fulfillment made by the appellant - appeal allowed by way of remand.

Valuation - duty on remnant Aviation Turbine Fuel (ATF) in the Aircraft at the time of its conversion from international sector to domestic sector - Determination of insurance, freight and landing charges required to be added to the IOC price (the basis for payment of duty) for determination of assessable value of remnant ATF in the aircraft at time of conversion from international to domestic run - demand of differential duty alongwith interest and penalty - Scope of Rule 10(2) of the Custom Valuation (Determination of Price of Imported Goods) Rules, 2007- Scope of Rule 10(2) of the Custom Valuation (Determination of Price of Imported Goods) Rules, 2007 - extended period of limitation - Confiscation - contrary views. HELD THAT:- Since there are contrary views to the view earlier taken by the coordinate benches of tribunal, we refer the m....... + More

Valuation of imported goods - rejection of declared value - alleged forgery of market enquiry - HELD THAT:- There is some element of truth in the contentions of the petitioners that the Market Inquiry Report dated 31.05.2012 (P-2) is possibly forged, however, we do not find it appropriate to decide the issue while exercising writ jurisdiction under Article 226 of the Constitution. Further, the Tribunal consisting of two members (Member Judicial and Member Technical) would be quite competent to deal with all the issues raised by the petitioners for proper adjudication. It is also conceded that at present the Tribunal is available at Chandigarh, therefore, there seems to be no difficulty for the petitioners to approach the Tribunal. The petitioners are relegated to file their appeals before the CESTAT, Chandigarh and if the appeals are file....... + More

Detention of imported goods - Digital Multifunction Machines (DMM) - prohibited/restricted goods or not - non-compliance with the requirement of producing Extended Producers (EPR) certificate as per E-waste Management Rules (EMR), 2016 - case of petitioner is that the broad classification or entry under which the goods are imported comes under ‘restricted’ category but not ‘prohibited’ category? - section 110 of CA. HELD THAT:- The inspection of goods imported under the Bill of Entry has not been taken so far by the respondent. There is a serious dispute on whether the subject goods comes under ‘restricted’ category or ‘prohibited’ category under various Enactments, Rules and Regulations referred to above. This Court, without determination on the aspect by the authorities in accordance with ....... + More

Validity of Detention order - smuggling - Gold of Foreign Origin - confessions obtained under Section 108 of the Customs Act, 1962 - HELD THAT:- A perusal of grounds of detention and in particular paragraph 7 thereof, clearly reflects that, it is completely bereft of any material expressed therein for the Detaining Authority to arrive at the conclusion to the effect that ‘there is immediate possibility of your release from judicial custody’. Further, as is axiomatic from a reading of the same paragraph, the Detaining Authority was aware that the detenus were in judicial custody at the Presidency Correctional Home, Alipore, Kolkata, at the time of passing of the impugned order. In the absence of cogent material, the statement in the grounds of detention regarding the alleged imminent possibility of the detenus’ coming out....... + More

Valuation of goods - Aluminium scrap - enhancement of value based upon the NIDB data - HELD THAT:- The enhancement stands set aside by Commissioner (Appeals) by referring the earlier matters of the same assessee in which case such assessments were set aside. Appeal dismissed - decided against Revenue.

Validity of the approach of the the revenue officers to wait till the last day of the period of limitation and to decide whether to file an appeal or not at the last moment - Non-implementation or non-compliance of Ext.P11 final order - direction to respondent to issue detention certificate as per Regulation 6(1) of Handling of Cargo in Customs Area Regulation 2009 - waiver of demurrage charges from the Warehouse Corporation - suitable compensation for the alleged loss and damage suffered by the petitioner on account of depreciation value of subject goods and detaining the goods for unreasonable long period - defence of respondent is that there cannot be a direction to release or comply Ext.P11 final order before the period available for statutory remedy of appeal expires. HELD THAT:- This Court is constrained to observe that the responde....... + More

Advance Authorization Scheme - non-fulfilment of export obligation - supplies made to SEZ units - non-furnishing of bill of export - acceptance of Merchandise Export from India Scheme (MEIS) for issuance of MEIS scrip for the exports - exports made in 2015-16 and 2016-17 - It is the grievance of the Petitioner that after having held that the Petitioner has fulfilled the export obligation, the Additional Director General of Foreign Trade should have allowed the Petitioner’s appeal - HELD THAT:- In the present case, there is no dispute that Respondent No.3- Additional Director General of Foreign Trade who passed the impugned order was satisfied that the Petitioner has fulfilled the export obligation but he denied the benefit of export obligation to the Petitioner only on the ground of non-furnishing of bill of export. This view taken ....... + More

Imposition of penalty u/s 112(a) of the Customs Act, 1962 - redemption fine - classification of imported goods - import of Non Alloy material - Alleged mis- declaration of imported goods - whether the goods imported fell within Alloy Steel as per IS 7598:1900? - maintainability of appeal - appropriate forum - HELD THAT:- No question of law arises under Section 130 of the Act for consideration by this court - the Assessee ought to have approached the Departmental Authorities for waiver of the penalty and in such circumstances, in view of a very low and marginal difference of the chemical material (Boron) content in the goods imported and that too is one of several components and that other parameters as given in the Laboratory Report being within limit is not disputed by the learned counsel for the parties, would bring the commodity in que....... + More

Non-speaking order - order set aside on the ground of laches, since it was belatedly disposed without adhering to the time limit stipulated in the Circular of the Department - Circular No.732/48/2003-CX., dated 05.08.2003 - Classification of imported goods - pepper - case of the petitioner is that as per the four Bills of Entry, the importer has classified natural pepper under Tariff item 33021010 in two Bills of Entry and Tariff item 33021090 in the other two Bills of Entry - HELD THAT:- Since the respondent had not given the reasoning as to why these tariff items will not be applicable to the description of their product has not been specified in the impugned order, it would amount to a non-speaking order - It is no doubt true that the respondent had chosen to rely on Rule 2B of the General Rules by interpretation of the first schedule ....... + More

Resale of old properties - HELD THAT:- The office is directed to resell this property on fresh sale notice. The notice be published in one English and one vernacular daily having wide publication in Pune. Date of sale will be 13th December, 2019. It goes without saying, information regarding sales should be uploaded by the office on its website. Offer documents are returned to Mrs. Sikdar. The offerers want return of respective earnest money tender instruments. The office is directed to return them. List on 13th December, 2019 for disposal.

Contempt of Court / Tribunal - Seeking initiation of contempt proceedings against the Respondents - application u/s 425 of the Companies Act, 2013 - alleged wilful violation of the order dated 23rd October, 2008 passed by the erstwhile Company Law Board, Additional Principal Bench, Chennai - no wilful disobedience of order. Whether an appeal under Section 421 of the Companies Act, 2013 is maintainable against an order passed by the Tribunal in exercise of powers conferred under Section 425 of the Companies Act, 2013 which empowers the Tribunal to initiate contempt proceeding for committing contempt of its own order? HELD THAT:- The Tribunal has been empowered to exercise and discharge such powers and functions as have been conferred on it or under this Act or any other law (‘Insolvency and Bankruptcy Code, 2016’) for the time ....... + More

Oppression and mis-management - various acts of fraud and fabrication of documents in an effort to remove the appellant from the Membership and Board of the 1st respondent divesting him of his entire investment - Section 397, 398 and 111(4) of the Companies Act, 1956 - whether the appellant has paid the amount and is not a defaulter? HELD THAT:- In case the person is a defaulter in payment of subscription to capital or any sum due against him, he will be denied the benefit of this Section. It is also not disputed that the appellant and 2nd respondent are promoter and director of 1st respondent. We note that the appellant is a retired Officer of Income Tax Department, he is very well aware of the law of the land in financial matters - The stand taken by the appellant is that 1st respondent was not having any bank account, therefore, he pai....... + More

Oppression and mismanagement - maintainability of the Company Petition - grant of interim relief- It is urged that the alleged acts of oppression/mismanagement are nothing but ‘operational issues’ arising in day to day management of the Company - Estoppel from denying the factum of seeking time by joint consensus with the Appellant to name the Independent Director - HELD THAT:- It appears that maintainability of the Company Petition in the context of eligibility of Respondent No. 2 (Petitioner) to file petition under Section 241-242 of the Act is not in controversy. The Appellant, however, has vociferously challenged finding as regards limitation at the very threshold stage. It is the settled position of law that limitation is a mixed question of law and fact. Any finding which is not informed of the reasons and does not rest ....... + More

Requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme of merger - Scheme of Merger by absorption of Amanora Future Towers Private Limited with City Corporation Limited and their respective shareholders under Sections 230 to 232 of the Companies Act, 2013 - applicant/Transferee Company submits that since no reconstruction or arrangement is happening with its shareholders or creditors, there is no requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme. HELD THAT:- The Applicant Company 1 is directed to serve notices along with copy of scheme upon: - (i) concerned Income Tax Authority with in whose jurisdiction the Applicant Company 1's assessments are made (PAN No.-AAKCA3074H Assistant Commissioner of Income Tax Circle 1(1) Incom....... + More

Restoration of name of the company in the Register of Registrar of Companies - failure to apply for the status of a dormant company - HELD THAT:-It is a matter of record that the factum of fraudulent activities of one of the Directors of the Company involving theft of machineries and raw materials to the extent of ₹ 2 Crores is taken note of by the Tribunal in the impugned order. In the given circumstances, it would be unjust to strike off the name of Company from the Register of Companies merely because it failed to apply for seeking of a Dormant Status. The twin grounds projected at the hearing constitute a valid and just ground for restoring the Company on the Register of Companies - restoration of the name of the Company on the Register of Companies is allowed subject to the Appellants complying with all the statutory requiremen....... + More

Proceedings against the auditors of the company - removal from the statutory audit - proceedings after resignation - Constitutional validity of sub-section (5) of Section 140 of the Companies Act, 2013 - prosecution of the Petitioners and initiation of proceedings under section 140(5) of the Act - HELD THAT:- the word “action” in the second proviso to sub-section (5) of section 140 of the Act, would be required to be read down as “prosecution”. The prosecution can be initiated only after final report, equated with a report under the provisions of section 173 of the Code of Criminal Procedure, 1973, is made - This issue, in our prima facie opinion, also requires to be dealt with elaborately. The matter thus warrants a response from Respondent No. 1 and Respondent No. 2. We defer the hearing on the writ petitions - Stand over to 3rd October 2019.

Oppression and Mismanagement - Power of CLB to decide the issue of salary - section 397/398/402 and 403 of The Companies Act, 1956 - disbursement of outstanding salary of the intervener for the month of November 2013 - HELD THAT:- The CLB is free to pass orders as long as they are in the interest of proper conduct of the affairs of the Company. Earlier also the CLB had passed the order dated 28.02.2013 by which it had made certain directions regarding the employees of the company including that the employees shall not be suspended or terminated. It is manifest from the said order that the employees would have also to be paid their salaries. The said order was not challenged in any proceedings and to that extent has attained finality. The present impugned order has been passed only in furtherance to the said directions given on 28.02.2013........ + More

Approval of sale of the shares of Specified Wind SPVs held by IWEL to ORIX, free and clear from all encumbrances, liens, security interest and third party claims upon receipt of the ORIX Revised Bid amount for ORIX, in compliance of the terms of the SPA - price discovery mechanism - penultimate lap - HELD THAT:- The Resolution Framework is based on the principles underlying the Insolvency & Bankruptcy Code, 2016 and is in line with the mandate of the New board ( In terms of the October 1 Order). Under the circumstances, it is in larger public interest and in the interests of justice that this Tribunal approves the sale of 51% of the shareholding of each Specified Wind SPVs to ORIX and passes necessary directions to facilitate/consummate the said resolution on the terms as contemplated under the SPA. It is submitted that the approval o....... + More

Financial Establishment or not - National Spot Exchange Limited (NSEL) - whether the NSEL is a financial establishment within the meaning of Section 2(d) of MPID Act? - HELD THAT:- The NSEL has not accepted any deposit and if it has not accepted any deposit, then it would not fall within the definition of ‘financial establishment’. The NSEL has received money from the buyers at T+2 date and it was immediately paid to the sellers at T+2 date. However, on T+25 date, the parties who were sellers on T+2 date, and who were under obligation to make payment on T+25 date, failed to do so and it is not the NSEL but the sellers who receive the money from the buyers on T+2 date with an underlying obligation to make the payment of T+25 date but failed to do so and therefore, at the most, they could be referred to as ‘financial estab....... + More

Time limitation - oppression and mismanagement - Respondents have neither appeared before this Appellate Tribunal in compliance to notices served upon them to contest the grounds urged for reversal of the impugned order nor appear to have produced any document before the Tribunal in support of their plea that whenever they acquired shares from other parties - whether the petition before the Tribunal was barred by limitation? - HELD THAT:- While it cannot be disputed that the restrictions imposed upon Private Companies in regard to transfer of shares enjoins upon the Shareholder desirous of selling away his share to follow the procedure laid down in the Articles of Association of the Company, the issue of limitation affecting the very jurisdiction of the Tribunal has to be addressed irrespective of the fact that the same has been set up as....... + More

Restoration of name of Company in the Register of Companies maintained by ROC - no returns were filed for the period beginning from 2014-2015 till 2017-2018 - section 252(1) of the Companies Act, 2013 - HELD THAT:- It is conclusively established that the company cannot be considered to be in operation. Further, merely some unsecured loans/investment in private companies have been made in earlier years and which have remained static, the continuity of the company as a going concern as per established business norms and accounting framework cannot be said to be in existence. Further, in view of the specific provisions of section 248(6), the liability to pay unsecured loans remain on the part of directors / other persons in the charge of the management of the company and the assets of the company are also available for the discharge of all i....... + More

Confirmation of the Scheme of Arrangement between New Kenilworth Hotel Private Limited (NKHPL) and KHR Hospitality India Limited (KHIL) and their respective Shareholders and Creditors - Sections 230 to 232 of Companies Act, 2013 - HELD THAT:- From the record it appears that the convening of meetings of equity shareholders of the NKHPL and the KHIL were dispensed in as much as they had given their no-objection to the Scheme by way of Affidavits. The proposed Scheme does not seem to be contrary to the public policy, nor prejudicial to the interest of its Shareholders or detrimental to public interest at large. In addition to the above, all statutory compliance have been complied with or further undertaken for making compliance by the Petitioner Companies. Therefore, the present Company Petition deserves to be allowed. Petition allowed.

Oppression and Mismanagement - time limitation - applicability of Limitation Act - applicability of provisions of Section 397 and 309 of the Companies Act, 1956 - principles of res-judicata - HELD THAT:- It is natural that the notice for the Meeting is issued before the date of the Meeting and the Minutes of the Meeting are prepared either on the date of Meeting or on subsequent date and normally confirmed in the next Meeting. Even the Expert Forensic Report stated that the Minutes of the Meeting have been prepared after alleged dates (date of the Meeting). We do not see any fundamental flaw as they are normally prepared after Meeting is over. On going through the documents argued by the Learned counsel for Respondent, we noted that 1st appellant was very well aware that 2nd respondent has been appointed on the basis of the documents plac....... + More

Maintainability of writ petition - proceedings against an officer of President level and senior most permanent employee of the company, Petronet LNG Limited - ex-parte order- petitioner concluded his arguments on the maintainability and submitted that it is obvious that the words “Any person or Authority”, used in Article 226 of the Constitution of India, are, therefore, not to be confined only to statutory authorities and instrumentalities of the State - HELD THAT:- The respondent company is “Public Limited Company‟ as per section “4-Memorandum-(1)” of Companies Act, 2003. The company was formed as a joint venture company by Government of India in 1998 in pursuance of Cabinet decision on 04.07.1997. Thus, it is an instrumentality of Government because it comes under purview of “other authorities&....... + More

Restoration of name of Company in the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The proof in regard to possession of assets by the Company and owing of any liabilities by it as also in regard to factum of any income from legitimate sources assessable to Income Tax being abysmally absent, no fault can be found in regard to striking off the Company by ROC under FTE which has been duly notified in the ‘Gazette of India’. Plea in this regard emanating from the Revenue is without substance and cannot be countenanced. Same is true about the plea of Revenue being a ‘Creditor’ within the meaning of Section 252(3) of the Companies Act, 2013, when admittedly it had not raised any demand or passed any assessment order prior to passing of the order of striking off the Company from the Reg....... + More

Restoration of the name of the Company which has been struck off by the Registrar of Companies, West Bengal - Section 252(1) of the Companies Act, 2013 - HELD THAT:- It is noted that the Company is having regular operations and have got substantial revenue therefrom. Hence, it can be safely concluded that the Company is in operation. This fact is also corroborated by the various licences/Bank statements as well as the copies of Income Tax returns submitted by the Appellant. However, no plausible reasoning has been given for non-filing of returns which set Office of the Registrar of Companies into action for striking off the name of the Company, nor the Company gave reply to the notice issued by the Registrar of Companies - Hence, it is a fit case for imposing cost of ₹ 25,000/- for each year of default so that such recurrence can be....... + More

Sanction of Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 - It has been stated in the Company Petition that the present Scheme of Arrangement does not contain or provide for Corporate Debt Restructuring - HELD THAT:- The Scheme of Amalgamation mentioned in this Petition being Annexure "A" hereto be sanctioned by this Hon'ble Tribunal to be binding with effect from 31st day of March, 2018 on VIVEK TRADE & INVESTMENT PRIVATE LIMITED with UNISTAR RESOURCES AND TRADES PRIVATE LIMITED and their shareholders and all concerned - All the properties, rights and interest of VIVEK TRADE & INVESTMENT PRIVATE LIMITED be transferred to and vested in without further act or deed in UNISTAR RESOURCES AND TRADES PRIVATE LIMITED and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013 a....... + More

Restoration of Company in the Register of Companies maintained by the Registrar of Companies, West Bengal - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- The Company has got unsecured long term and short term loans which have been invested in the real estate properties and shares since beginning and the same status, more or less, has continued till 31st March, 2018 - The company has also provided us the copy of bank statement as Annexure A-7 and Copies of Income Tax Return marked as Annexure 6. The above facts lead us to a conclusion that the Company made investment in properties in the initial period itself which is continuing. It is also pertinent to mention that investment in such properties is of a significant value and in case the Company is struck off, it may cause irreparable loss and disposal of such properties may be l....... + More

Dispensation of meetings of Unsecured Creditors of Appellant No. 4 and Shareholders and Unsecured Creditors of Appellant No. 5 - Section 421 of the Companies Act, 2013 - HELD THAT:- It is well settled that a Coordinate Bench is bound to follow the law enunciated by another Coordinate Bench and if it feels that the earlier view requires reconsideration, it may refer the matter to a larger bench for reconsideration. Following of the judicial precedent and observing the judicial view propounded by a Coordinate Bench in compliance is a matter of judicial discipline and the only course open to a Coordinate Bench of equal strength taking a different view is to refer the matter to a larger Bench. This is the law of the land declared by the Hon’ble Apex Court and has to be observed and adhered to strictly. The impugned order falling within ....... + More

Admissibility of application - initiation of CIRP - Repayment of loan granted - cause of limitation continuing - applicability of time limitation - Section 23 of the Limitation Act. HELD THAT:- It is clear that when the Recovery Certificate dated 24.12.2001 was issued, this Certificate injured effectively and completely the appellant’s rights as a result of which limitation would have begun ticking - his being the case, and the claim in the present suit being time barred, there is no doubt that is due and payable in law. Appeal allowed.

Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - Corporate Debtor in accordance with Section 22 of the Code by the Committee of Creditors - approval of Resolution plan - HELD THAT:- Section 53 of the Code lists the priorities to be given to the beneficiaries, of liquidation value of the assets of the Corporate Debtor. The provisions of Section 53 make it amply clear that Operational Creditors are at the end of the list of beneficiaries as the Secured Financial Creditors have edge over the others - It would also be pertinent to mention here that Operational Creditors have no locus standi as far as approval of the Resolution Plan by the CoC is concerned. As per Section 24(3)(C), they are not eligible to attend and vote at the meetings of CoC if they are holding less than 10% of the total debt. It is found ....... + More

Maintainability of application - initiation of Corporate Insolvency Resolution Process - Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - Operational Debt - default in repayment of debt due and not payable - existence of dispute. HELD THAT:- This adjudicating authority is of the considered view that operational debt is due to the Applicant. That, service is complete and no dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default - the Application filed by the Applicant is complete in all respects. It is a fit ca....... + More

Voluntary winding up - default in repayment of due installments - Section 10 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The learned counsel for petitioner-Company has tendered a crossed cheque, payable in the name of Liquidator for a sum of ₹ 11, 41, 223/- to learned counsel for respondent No. 2, which has been accepted towards arrears of rent - It is agreed between the parties that after adjusting the amount of refundable security and amount tendered today in Court, nothing remains outstanding against petitioner-Company towards any claim for the period premises having remained in its occupation, except a sum of ₹ 1, 48, 525/- towards arrears of Electricity Charges for the period prior to 1.7.2019 as per electricity bill dated 9.8.2019. The learned counsel for petitioner-Company states that since details of Electric....... + More

Liquidation order - Financial Creditor - section 5(7) read with Section 5(8) of the ‘I&B’ Code - HELD THAT:- Similar issue fell for consideration before this Appellate Tribunal in Y. SHIVRAM PRASAD AND ASSET RECONSTRUCTION COMPANY (INDIA) LTD. VERSUS S. DHANAPAL & ORS. AND SERVALAKSHMI PAPER LTD. & ORS[2019 (5) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that The liquidator is required to act in terms of the aforesaid directions of the Appellate Tribunal and take steps under Section 230 of the Companies Act. If the members or the ‘Corporate Debtor’ or the ‘creditors’ or a class of creditors like ‘Financial Creditor’ or ‘Operational Creditor’ approach the company through the liquidator for compromise or arrangement by making proposal....... + More

Maintainability of application - Initiation of CIRP - Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - corporate debtor not in a position to pay the said outstanding - HELD THAT:- On perusal of the material available on record it is also found that, the respondent has not raised any dispute against the claim and has admitted claim of the operational creditor by way of affidavit. This adjudicating authority is of the considered view that operational debt is due to the Applicant. That, service is complete and no dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish t....... + More

Maintainability of application - Initiation of CIRP - Appellant submits that the Adjudicating Authority declared the Corporate Debtor as Non-performing Asset (NPA) is under challenge - HELD THAT:- As held in the case of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT], if there is a ‘debt’ payable by the ‘Corporate Debtor’ and ‘default is committed and default is of more than Rupees One Lakh, it is open to the Adjudicating Authority to admit the application u/s 7 based on the records. Learned counsel for the Appellant submitted that the matter should be remanded to the Adjudicating Authority to find out whether the ‘debt’ is payable or not. However, such prayer cannot be accepted as no plea was taken up by the ‘Corporate Debtor’ that no &l....... + More

Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - no privity of contract - pre-existing dispute - default in respect of ‘operational debt’ in the manner provided under Section 9 of the I&B Code - HELD THAT:- The fact that ‘Priya Trading Company’ was the name and style under which Arun Agrawal and Annapurna Agrawal have been operating was never a fact required to be discovered or rediscovered. Both are synonyms and well within the knowledge of the ‘Corporate Debtor’ as also the ‘Appellant’. The ground raised to offset the triggering of Corporate Insolvency Resolution Process at the instance of ‘Priya Trading Company’ as ‘Operational Creditor’ by taking plea of there being no privity of contract between the ‘Operational Credit....... + More

Maintainability of petition - initiation of Corporate Insolvency Resolution Process - default in repayment of debt - Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is no dispute with regard to the fact that the Corporate Debtor had taken credit facilities from UCO Bank on 19.01.2005, 22.02.2008, 31.03.2009, 06.11.2009 and 18th May, 2012. There is no dispute regarding the fact that Corporate Debtor had secured the credit facilities taken by equitable mortgage of immovable property and by executing other securities. The filing of proceedings before DRT in 2014 and invoking of Section 13(2) of SARFAESI in 2016 are also not disputed. Amount more than ₹ 1 Lakh is in default, is apparent from record. The proceeding in DRT is still pending. It is clear that the question of limitation has to be looked into from the angle whether t....... + More

Condonation of delay - Section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Considering the proviso of sub-section (2) of Section 61, we have authority to condone the delay, if there is sufficient cause only to the extent of fifteen days. Apparently, the present Appeal is hopelessly time barred and we have no jurisdiction to entertain the same. The Application for condonation of delay is rejected.

Dissolution of the Corporate Person - Section 59 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Petition is filed by the Liquidator under Section 59 of the IB Code, 2016. This Adjudicating Authority has to see whether the liquidator has complied with all the provisions of Section 59 of the IB Code, 2016 read with Regulation 3 of the Regulations before initiating voluntary liquidation of the company. It is on record that the board of directors have passed necessary resolution on 11.12.2017 to liquidate the company voluntarily and the directors have also executed the Declaration of Solvency dated 16.11.2017 by way of an affidavit in terms of provisions of Section 59(3)(a) of the IB Code, 2016 - The Company has issued notice to all the shareholders and an Extraordinary General Meeting was also held on 11.12.2017 in which the a....... + More

Initiation of Corporate Insolvency Resolution Process - non-delivery of notice of demand upon the Corporate Debtor - HELD THAT:- Application of Appellant was required to be rejected merely on the ground of non-delivery of notice of demand upon the Corporate Debtor and the Adjudicating Authority had no jurisdiction to record finding with regard to merits of the claim. Period of limitation - Application filed in Form 5 in compliance to the order of Adjudicating Authority seeking initiation of Corporate Insolvency Resolution Process under Section 9 of I&B Code was not hit by limitation but the application was premature as the demand notice stated to have been sent on 11.10.2017 could not be served upon the Respondent and was received back with endorsement “Addressee Left”. Even the notice sent on alternate address was returne....... + More

Application u/s 7 of the Insolvency and Bankruptcy Code, 2016 - ‘Corporate Debtor’ failed to pay the debt and default occurred - HELD THAT:- Adjudicating Authority found that there is a debt and default and the application filed by the ‘Financial Creditor’ was complete, we find no infirmity in the impugned order of admission. We observe that if the ‘Financial Creditor’ satisfies all the requirements, the Adjudicating Authority has no discretion to reject the application or defer it unless the ‘Corporate Debtor’ submits that they intend to settle the claim. Only if such request is made to settle the claim, the Adjudicating Authority may give one opportunity to the ‘Corporate Debtor’ to do so instead of admitting the application.

Costs of the interim resolution professional - who shall bear the costs? - HELD THAT:- Regulation 33(3) indicates that the applicant is to bear expenses incurred by the RP, which shall then be reimbursed by the Committee of Creditors to the extent such expenses are ratified. In the present case, no Committee of Creditors was ever appointed as the interim resolution process did not reach that stage. In these circumstances, it is clear that whatever the Adjudicating Authority fixes as expenses will be borne by the creditor who moved the application. The impugned judgment dated 02.08.2017 is set aside only to the extent that these expenses are to be paid by the Corporate debtor - appeal allowed.

Maintainability of application - Initiation of Corporate Insolvency Resolution Process - Existence of debt due from Corporate Debtor or not - section 7 of Insolvency & Bankruptcy Code, 2016 - HELD THAT:- This Adjudicating Authority does not have the requisite power to determine the disputed question of fact that could establish the existence of the debt in this case. Therefore, in the facts and circumstances and as per the judgement of Hon’ble Supreme Court in Innoventive Industries Ltd. vs ICICI Bank and Ors., [2017 (9) TMI 58 - SUPREME COURT], as the Petitioner could not prove the existence of debt due from the Corporate Debtor, this Petition cannot be admitted. Petition rejected.

Maintainability of application - Section 12A of the Insolvency and Bankruptcy Code, 2016 - rejection of application on the ground that the ‘Promoter’ not eligible to file the ‘resolution plan’ under Section 29A cannot file the application under Section 12A of the ‘I&B Code’ - proceeds of crime - whether Section 29A of the ‘I&B Code’ is applicable to the applicant, if he intends to withdraw the petition under Section 7 or 9, if the Committee of Creditor, approves a proposal with 90% voting share, in terms of Section 12A? HELD THAT:- If any person, including the ‘Promoter’/ ‘Director’ is ineligible in terms of any one or more clauses of Section 29A, he/she is not entitled to file any ‘resolution plan’ individually or jointly or in concert with anothe....... + More

Maintainability of petition - Initiation of CIRP - Default in repayment of Debt - extension of time to complete the project - Section 89 of RERA - Section 7 of the Insolvency & Bankruptcy Code, 2016, read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- It is settled principle of law that wherever time is the essence of a contract in such types of construction contracts, the builder is required to adhere to the date of delivery mentioned in the builder-buyer agreement despite the presence of similar reservations in the contract. The Corporate Debtor has proceeded on incorrect premise of Section 89 of RERA. The provisions of RERA cannot override the non-obstante clause laid down under Section 238 of IBC. It is a settled principle of law that a non-obstante clause has effect ....... + More

Admissibility of application - Initiation of CIRP - existence of debt or not - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Adjudicating Authority has not applied its mind nor gone through the application under Section 9 (Form 6) to find out whether there is debt payable or not. It has simply rejected the application on the ground that there is no contract between the parties which cannot be a ground. It is not the case of the Respondent that there is a pre-existing dispute. The Respondent has not pleaded and nor the Adjudicating Authority held that there is no record of debt or default. In this background, merely on the ground that there is no agreement reached between the parties, it was not open to the Adjudicating Authority to reject application under Section 9 preferred by the Appellant. From the decision o....... + More

Admissibility of application - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The present appeal has been preferred after delay of 112 days and in the light of the proviso to sub-section (2) of Section 61, this Appellate Tribunal has no jurisdiction to condone the delay. For the said reason, we are not expressing any opinion with regard to the impugned order dated 10th January, 2019. If the application under Section 12A is not entertained by the Adjudicating Authority that may give a fresh cause of action to the Appellant to move against the said order - appeal is dismissed being barred by limitation.

CIRP against VIL - to whom the amount belongs - an Award dated 29th April, 2013 was passed in favour of the Appellant and against the Respondent/ Videocon Industries Limited (VIL). That Award was challenged by VIL - as per the direction of the court to keep the amount with the Registrar General (RG) of the Court in a fixed deposit so that it could earn interest - amendment to Section 14 (3) of the Insolvency of Bankruptcy Code 2016 - HELD THAT:- The BG in question was encashed on 16th August, 2018 and the amount as a result of such encashment was kept as Fixed Deposit in the name of the Registrar General of this Court, so that it could earn interest. After that day and definitely on the date of passing of the impugned order dated 7th February, 2019, there was no BG in existence. The question therefore of the applicability of Section 14 (3....... + More

Offence under PMLA - attachment made by the Provisional Attachment Order (PAO) - HELD THAT:- It is evident that the PAO, the Original Complaint and the Impugned Order have simply copy pasted the contents of the CBI Chargesheet. In the present, very serious issues are involved, those have to be decided legally. We have examined the chart filed alongwith rejoinder as Annexure-A, which highlights the similarities between the Chargesheet, the PAO, the Original Complaint and the Impugned Order. Shockingly, the contents of these documents are almost identical and which evidences that the Respondent No.1 i.e. the author of the PAO and Original Complaint and the AA i.e. the author of the Impugned Order, has not applied his mind. He who passed the order was not the Judicial Member. The order was passed in very casual manner. In serious and complic....... + More

Money Laundering - sting operation - Reduction in quantum of penalty - Violation of the reporting obligations on part of the respondent banks - issuance of a warning in writing under Section 13(2)(a) of the Act - whether the Appellate Tribunal could modify the order passed by the Director, FIU by reducing the penalty imposed? - HELD THAT:- It is apparent that FIU’s contention that provisions of Section 13(2) of the Act, as in force prior to amendment on 15.02.2013, are applicable, is bereft of any factual foundation. The said contention is premised on the basis that the sting operation had been conducted prior to 15.02.2013 and, therefore, the respondent banks had violated the provisions of the Act, prior to Section 13(2) of the Act being amended. Consequently, the respondent banks are required to be visited with penalty as provided....... + More

Failure to report attempted suspicious transactions - Prevention of Money Laundering (Maintenance of Records) Rules, 2005 - HELD THAT:- There is no doubt that the warning letter dated 18.09.2014 was issued by the FIU in respect of the alleged violation of Section 12 of the PMLA, read with the Rules. The subject matter of the allegations included the internal control systems and failure to submit the STRs in relation to the sting operation conducted by Cobrapost. It is clear from the communications that the sting operation conducted by Cobrapost had set in motion an inquiry by the FIU which was not only limited to non-reporting of the transactions, which were subject matter of the sting operation, but also an extensive examination into the internal control system and anti-money laundering procedures established for compliance of the statut....... + More

Money Laundering - proceeds of crime - commission of the offence of Money Laundering under Section-3, PMLA - guilty of the offences under sections 120B read with 420, IPC; and were acquitted in respect of charges under section 467, 468 and 471, IPC - allocation of the coal block - HELD THAT:- The investors have invested in the shares of the Appellant company due to the coal allocation and coal linkage (allocation). Adjudicating Authority’s reading of the aforesaid Statements has gone behind the said Statements and amounts to disbelieving the same, without any factual basis or material to the contrary. The aforesaid statements recorded under section 50 of the PMLA have been duly signed and affirmed by the persons giving the statement. The proceedings under Section 50 PMLA are deemed to be judicial proceedings within the meaning of Se....... + More

Money laundering - proceeds of crime or not - alleged dishonest and fraudulent availment of credit facilities consisting of Cash Credit limit by using fake documents and accommodative transactions on paper - retention of policies, FDs and other important documents - offence punishable under Sections 120B & 419, 420, 467,471 of Indian Penal Code (IPC) - scheduled offences or not - HELD THAT:- It is an admitted position that the said policies and FDs are in the name of Jiban Kumar Mitra & Mrs. Malobika Mitra, who are the parents of the appellant. The specific submission has been made that her father had been working with I.O.C. for a long period of time and the said policies and FDs are the retirement benefits received from the employers. It is the matter of fact and same is not denied by the ld. counsel for the respondent during th....... + More

Money Laundering - Provisional Attachment of property - order to vacate the property - VAT refund availed on the basis of forged and fabricated documents - It is the contention of the appellants are that they were not a party before the adjudicating authority though they are the owner of portion of the property in question - HELD THAT:- The offences are of the year 2012- 13. Whereas the property in question was acquired in the year 2011 by Smt. Seema Garg. It is the contention of the respondent that the property in question has been attached as value thereof. There is no allegation that the property in question has been acquired out of proceeds of crime. When the case was registered the appellants and others have already purchased the property in question and in actual physical possession of the same. There is no rebuttal from the side of....... + More

Money Laundering - provisional attachment order - proceeds of crime - Section 26 of Prevention of Money Laundering Act, 2002 - scheduled offences or not - violation of the provisions of sections 120-B read with 409, 420, 467, 468 & 471 of Indian Penal Code and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 - HELD THAT:- Tribunal is of the view that the property admeasuring 1180 sq. ft. was not involved in the offence of money laundering under Section 3 of the Prevention of Money laundering Act, 2002. From the entire gamut of the matter that the claim of the respondent with regard to 1080 sq. ft. is a civil dispute. Even tribunal has no jurisdiction to decide the same despite of the fact that the appellants have got the sale deed registered in their favour for the part of the said portion. This tribunal has also....... + More

Money laundering - proceeds of crime - Retention of continuation of order of freezing / Panchnamma issued under section 17(1A) of PMLA - case of the respondent in the reason to believe as well as in the application filed under Section 17(4) was that it was a tainted amount and it amounts to money laundering - whether 1,43,38,330 shares subscribed in 2003 by foreign remittances through State Bank of India are ‘proceeds of crime” under section 2(1)(u) (notified on 1.7.2005)? HELD THAT:- Tribunal is of the view that at the best, ED might be frozen the amount at the hand of the appellant if any case is made out against the appellant. It is rightly observed by the Hon’ble Court. In the present case, the ED has sought to attach the assets of the Appellants by making out a case of equivalent in value thereof. The same is endors....... + More

Offence under PMLA - Irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment above against approved inflow - grant anticipatory bail - HELD THAT:- Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part ‘A’ of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Essential requirement of Section 45 of PMLA “accused of an offence punishable for a term of imprisonment of more than three years under Part ‘A’ of the Schedule” is satisfied making the offence under PMLA. There is no merit in....... + More

Offence under PMLA - Provisional Attachment Order - recovery of amounts outstanding against Respondent no.4 from the sale of the Mortgaged Properties - HELD THAT:- It is not denied on behalf of the respondent that the Appellant being the mortgagee and secured Creditor is entitled to recover amounts outstanding against Respondent no.4 from the sale of the Mortgaged Properties as it was never the case of the ED that the attached properties were purchased out of proceeds of crime. It has also come on record that the Appellant acted bonafidly while rendering the facilities and mortgage of the Properties was done for bonafide purposes. The Appellant is not involved in the schedule offence. There is also no criminal complaint under the schedule offence under PMLA is pending against the Appellant or any of its officials. Thus, the mortgaged prop....... + More

Offence under PMLA - retention of the seized goods - failure to file complaint within 90 days - summons were addressed to Mr. Iqbal Mubarak, a shareholder holding less than 1% shares of the Appellant Company and served at the address of the Appellant - HELD THAT:- It is an undisputed fact that Mr. Iqbal Mubarak is not an FIR named accused nor named in the ECIR and no prosecution complaint has also been filed against him even though prosecution complaint under PMLA has been filed against several persons arising out of same ECIR and the Special PMLA Court has taken the cognizance of the same and further trial proceedings are underway. There is no whisper anywhere in the appeal that either Mr. Iqbal Mubarak is prosecuted under PMLA. In the circumstances, as per the provisions of Section 8(3)(a) of PMLA, 2002 as existed till 13.07.2019 prosec....... + More

Offence under PMLA - pre-arrest bail seeked - HELD THAT:- Upon oral mentioning made by Mr. Kapil Sibal, learned Senior counsel appearing for the petitioner seeking urgent listing of the matter, the Registry is directed to place the matter, subject to curing of defects, before Hon’ble the Chief Justice of India for urgent hearing.

Offence under PMLA - summons issued by ED to appear for an investigation and other proceedings - HELD THAT:- As to whether by a criminal conspiracy the offences indicated in the schedule to PML Act is made out or not would be an issue which can be unearthed only after investigation. During the course of investigation, the authorities may arrive at a conclusion that there is no necessity to further investigate the matter and it may drop the investigation or in the event of authorities finding there is some material, it may then proceed to adjudicate. It all depends on circumstances emerging from investigation in a given case. If principles of interpretation is adopted, then, there was no necessity for the expression “conspiracy” being indicated in several enactments as found in the schedule to the PML Act. Section 120B of IPC f....... + More

Offence under PMLA - HELD THAT:- The Aim and Object of the Prevention of Money Laundering Act, 2002 is to find out property derived or obtained by any person as a result of criminal activity relating to a scheduled offence and to attach, freeze and confiscate the same subject to the trial under the Prevention of Money Laundering Act, 2002, so that the property cannot be laundered further, which is derived or obtained as a result of criminal activity. Recover the Proceeds of Crime from the person alleged to have holding the same. Without prejudice to the rights and contention of the appellant, the appellant is ready and willing to secure the interest of Enforcement Directorate by “Fixed Deposit Receipt” of any Nationalized Bank equivalent to an amount with the respondent by way of F.D. No doubt, this tribunal has allowed the similar prayer in number of appeals and even in few appeals, the respondent has given his consent.

Offence PMLA - attachment orders - HELD THAT:- It is Special Act, the provisions of this Act have to be considered on the date of offence as well as on the date of passing the orders. The appellants are acquitted from the schedule offence, no appeal has been filed either by the State or ED as admitted by the counsel for the respondent. Admittedly, the State as well as the respondent has not challenged the acquittal order before any Court even after expiry of 3 years. The respondent has merely stated that the Bank was cheated by the appellants as well as the main accused, the Bank has challenged the said order before the High Court and the appeal filed by the bank is pending. It is an admitted position that the Bank is not a party in the present proceedings. Therefore, in case the order was to be challenged, it was to be challenged by the ....... + More

Offence under PMLA - Encashment of securities while appeal was pending - HELD THAT:- One day after the receipt of the impugned order on 7.6.2019, the respondent has encashed the mutual funds/securities. - It is evident that the respondent by encashing the mutual funds at the pre-mature stage is directly contrary to Sub-rule (4) of Rule-4 without expiry of period of appeal. It is correct that the respondent is an independent agency and once the order is confirmed, after serving the notice under Section 8(4) and subject to filing of appeal and passing of an order, the respondent is entitled to take the possession. With regard to movable property, the sub-rule 4 of Rule 4 has to be complied very strictly. In case any breach of the said rule, the Appellate Tribunal has a power to interfere with. IO in the matter has encashed the mutual funds ....... + More

Prevention of Money Laundering - denial of natural justice - denial of supply petitioner’s statement recorded under Section 50(2) - HELD THAT:- Investigation in this sensitive case is in progress and is at a crucial stage. Rules of Natural Justice cannot be invoked at this stage as an accused has no say in the manner and method of investigation. Under the Code of Criminal Procedure, statements recorded under Section 161 of Cr.P.C. are not supplied during the course of investigation and are supplied alongwith the charge-sheet filed. In the instant case also, after completion of investigation in this case, copy of petitioner’s statement under Section 50 of The Prevention of Money Laundering Act, 2002 would be supplied. Petitioner is accused of an offence under The Prevention of Money Laundering Act, 2002 which poses serious thre....... + More

Offence under PMLA - pre-arrest bail - HELD THAT:- Severity of the punishment alone cannot be the criteria to determine as to whether bail has to be granted or not. Gravity of the offence is a relevant criteria which has to be considered while granting or refusing the bail. During the course of hearing, reliance was placed by learned ASG upon Section 265-A of Cr.P.C. to urge that in an offence punishable with term up to seven years, ‘plea bargaining’ can be entertained, is misplaced as proviso to Sub-Section (1) (b) of Section 265-A of Cr.P.C. contains a rider that ‘plea bargaining’ is not available where the offence committed affects socio and economic conditions of the country. A bare perusal of petitioner’s statement recorded u/s 50 of the PMLA reveals that he is evasive in his replies. However, gravity of....... + More

Offence under PMLA - pre-arrest bail seeked - HELD THAT:- In the instant case, in view of the enormous material placed on record in respect of distinguished entities, various transactions etc, this Court unhesitatingly opines that bail plea of petitioner is not acceptable. Recently, Supreme Court in Rohit Tandon Vs. Directorate of Enforcement [2017 (11) TMI 779 - SUPREME COURT] while dealing with the bail plea in a money laundering case, has again reiterated that white collar crimes/ economic offenders have deep rooted conspiracies involving huge amount of public funds and this should be viewed seriously and such offences ought to be considered as grave offences. Pertinently, the bail plea in the case of Rohit Tandon (Supra) was repelled by the Supreme Court while observing that duty of the Court at the bail stage is not to weigh the evid....... + More

Money Laundering - Attachment of property - utilization of proceeds of crime (POC) - whether the properties attached are acquired from proceed of crime or not - ultimate beneficiary of the POC - doctrine of privity of contract - Section 45 of PMLA - HELD THAT:- The facts remains that the payments made for the services provided to the M/s KB. Bhise & Co. during 2004 to 2006 were actually received between 06.02.2004 to 08.04.2006 whereas the properties attached by the Respondent were purchased during 2003, 2009, 2010 and 2011. It is stated on behalf of appellant that the properties in question were not purchased during the period of 2004-2006. Hence, the attached property can be construed as 'proceeds of crime' u/s 2(1 )(u) of PMLA. It is stated by the appellant that the source of acquisition of all these properties are duly dis....... + More

Purchase of property in India - Individual arrived in India on Business Visa - “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 - THAT:- Appellants residing in India for more than 182 days in the previous financial year at the time of setting up of business and purchase of property in India. Thus, they satisfied the definition of the term “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 and therefore there was no impediment to purchase and hold property in India nor did they require any permission from the Reserve Bank of India to purchase immovable property or to set up any business in India. The property was purchased on 01.09.2009 more than a year after they entered India under a valid Visa. It is ....... + More

Fastening liability on a director of a company for contravention of the FERA - Offences by companies - ‘Opportunity Notice’ - HELD THAT:- The adjudication proceedings are being pursued by the ED on the basis that each of the present Appellants was at the relevant time, “in charge of”, and “responsible to” NIL for the conduct of its business. There can be no doubt that the above standard for fastening liability on a director of a company for contravention of the FERA, applies to both criminal proceedings that would result following an ‘Opportunity Notice’ as well as the adjudication proceedings that would follow an SCN/MFA issued under Section 51 FERA. The foundational fact that requires to be shown to exist for proceeding against a person under Section 51 of the FERA read with Section 68 (1)....... + More

CBI investigation for violation of provisions of FCRA - Cancellation of registration under FCRA - diversion of the funds for personal benefit of the office bearers or any other individuals - Constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA’) and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (FCRR) - whether they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India? HELD THAT:- It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and app....... + More

Guilty of contravention of the provisions of Section 26(7)(i)(ii) of FERA 1973 - Penalty imposed on directors - dealing between a FERA Company and ‘a Person resident in India’ (which could only be an individual) - arrangement between two bodies corporate - whether amount given by LIL to HLL can neither be treated as a ‘loan’ or ‘deposit’? - HELD THAT:- Scope of “person resident in India”, it cannot be held that the amount given by LIL to HLL in the aforesaid circumstances was not ‘bonafide’ and that the Company did not act under an ‘honest and genuine belief’ that it was permissible to do so. Nor can it be said that the company ‘acted deliberately in defiance of law’ or were ‘guilty of conduct contumacious or dishonest’ or ‘acted in consc....... + More

Non-compliance with the direction for pre-deposit - Offence under FEMA - HELD THAT:- The learned counsel for the respondent had earlier taken exception to the maintainability of these appeals at the outset, his submissions having been recorded in the proceedings on 11.07.2019 to the effect that the appellants are belated with reference to the order dated 15.11.2018 which, even otherwise, had not been challenged, the orders sought to be impugned by these appeals being only consequential. At the hearing, the counsel for the appellants was asked if they are now willing to make the pre-deposits as was directed by the appellate tribunal by its order dated 15.11.2018. The counsel answered in the negative taking the position that the appeals at hand raise questions of law. The order dated 15.11.2018 having attained finality, the appellate tribun....... + More

Hawala transactions - Contravention of provisions of Section 3(b) and Section 3(c) of FEMA, 1999 - allegation based on statement of various persons - submission of the appellant was that the appellant has been wrongly implicated in the case and nothing was seized or recovered from his possession - HELD THAT:- The impugned order has alleged that he received money (Indian currencies) from some other people some of whose name are Poonam, Getha, Raja Ram, Devidoss, Jaloor etc. who in turn has arranged this money from people from abroad. Thus, it appears that the impugned order has not established the appellant receiving the money directly from abroad. Moreover, there is no restriction on circulation of Indian money within the country, at least under FEMA - the department has not investigated those people who are Indians and who have delivered....... + More

Acquiring and transferring foreign exchange equivalent to ₹ 208 crores without the prior general or special permission of the RBI - Section 8(1) of FERA, 1973 - allegation is made that M/s. THL have not provided any documents to prove the source of funds which they have invested/remitted to M/s. Sterlite Industries (India) Limited etc. in India and because some of the Directors are common to both the companies, it has been held that this money has actually been funded by M/s. Sterlite Industries (India) Limited to M/s. THL and then back to M/s. Sterlite Industries (India) Limited. HELD THAT:- There is no prima facie evidence, documentary or otherwise on which the adjudicating authority has relied upon to conclusively prove the above charges. Whether there is a round tripping of funds, the interests of the common Directors in each of....... + More

Restoration of appeal - appeal was dismissed on time limitation as well as for non-compliance with the pre-deposit - HELD THAT:- That Delhi High Court’s order, clearly mentions only two appeals i.e. 475 and 543 of 2004 of having being remanded to the AT. There is no such order with regard to the other two appeals i.e. 473 and 488 of 2003 and hence it was legally required for the appellants to have filed, if they so desired, a proper restoration of appeal applications with valid grounds and reasons. As discussed above, they have failed to do so either in their applications or during the hearing - the restoration of appeals applications in appeal No. 473 & 488 of 2003 is dismissed as rejected as is without any grounds and substance. Other two appeals i.e. 475 & 543 of 2004 which has been remanded by the Hon’ble Delhi Hig....... + More

Imposition of penalty by Special Director - contravention of Sections 8(1) & 9(1)(a) of FERA, 1973 and Sections 9(1)(f)(i), 8(1) & 9(1)(a) of FERA, 1973 - unlawful detention - initiation of adjudication proceedings as contemplated under Section 51 FERA, 1973. HELD THAT:- The Adjudicating Authority has not been taken into account in the Impugned Order that prior to the Notification dated 31.07.1995, the position was that foreign currency could be deposited in NRE Accounts by power of attorney holders of NRIs. That being the case the necessary ingredients to make out the violations under Sections 8(1), 9(1)(a) and 9(1)(f) of FERA are not made out - It is rightly stated that in the Impugned Order proceeds on the erroneous premise that the foreign exchange deposited in the NRE Accounts of Mr. V.D. Jaiswal were deposited by the Appella....... + More

Maintainability of the appeal - Section 19 of the Foreign Exchange Management Act, 1999 - appeals were fixed for orders when there is a difference of opinion - HELD THAT:- There is no dispute that the impugned orders are interlocutory orders and these orders are passed during the course of inquiry proceedings as provided under the Act and Rules thereto. The object of Section 19 (1) is to give a right to appeal to a party aggrieved by an order which affects the party’s right or liability. If the present type of orders are allowed to be agitated than there will be no end to litigation and the very purpose of the relevant provisions and intention of the legislature would be defeated. The scope of the words “an order” of Adjudicating Authority is not as wide as “any order” or “every decision or order”....... + More

The appellants has not filed affidavit with proof of dasti service upon sole respondent - HELD THAT:- Two weeks time is granted to learned counsel for the appellants to file affidavit with proof of dasti service.

Remedy of instituting an appeal to the Special Director (Appeals) - impugned order was served upon Petitioners by pasting on the premises sometime on 23rd February, 2019 and this Petition was lodged in the first week of May, 2019 - time limitation - HELD THAT:- If any issue of limitation arises, we are sure that the Appellate Authority will give due regard to all these circumstances. However, since the Petitioners haves alternate and efficacious remedy available under the FEMA itself, we are not inclined to entertain this Writ Petition. This Petition is disposed of by granting liberty to the Petitioners to institute an appeal against the impugned order, in case the Petitioners so choose. All contentions of the Petitioners are expressly kept open, since we have not examined the merits of the matter.

Imposition of penalty by Special Director - contravention of Sections 6(4), 6(5), 49, 73(3) of FERA, 1973 r/w NRE Account Rules 1970 - initiation of adjudication proceedings as contemplated under Section 51 FERA, 1973 within 30 days - HELD THAT:- In the Impugned Order the factum of prior to the Notification dated 31.07.1995, the position was that foreign currency could be deposited in NRE Accounts by power of attorney holders of NRIs. The same was requisite requirement to make out the violations under Sections 8(1), 9(1)(a) and 9(1)(f) of FERA are not made out - In the Impugned Order, the Adjudicating Authority has not taken into account the fact that the Adjudicating Authority has in 52 cases against the Appellant, quashed penalty imposed against him and the same have till date not been challenged by the Respondent before the Appellate a....... + More

Hawala transactions - Detention order - smuggling of foreign origin gold by a syndicate of persons from UAE to India - the sale proceeds of the smuggled gold were siphoned off to Dubai through hawala. - Offences punishable under Section 135 of the Customs Act, 1962. Whether the orders of detention were vitiated on the ground that relied upon documents were not served along with the orders of detention and grounds of detention? - Whether there was sufficient compliance of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act? Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenues being released on bail? HELD THAT:- It is well settled that the order of dete....... + More

Permission for withdrawal of petition - Time limitation of Adjudication proceedings under section 13 of FEMA Act - HELD THAT:- It is the Petitioner's contention that the proceedings which are being contemplated against the Petitioner relate to issues which are over 10 to 12 years prior to the issue of the notice. Thus, causing it prejudice. We trust that the submissions made by the Petitioner would be duly considered by the Adjudicating Authority while taking a decision thereon. Petition disposed of as withdrawn with liberty to file a further representation/reply to the impugned notice dated 15th April, 2019 within two weeks from today.

Non-realisation of exports proceeds - guilty of contravention of Section 18(2) and 18(3) of FERA, 1973 - It was the case of the respondent that the appellants have failed to take reasonable steps to realize the export proceeds the RBI had not granted any permission to the appellants for extension of time or for writing off the same - HELD THAT:- It is noticed by the Hon’ble High Court in para-5 of the order that on perusal of the impugned orders passed by the Appellate Tribunal, it is seen that the Tribunal has not considered the Bank Certificates furnished by the petitioner, which prime facie suggest that the export proceeds have been realized by the appellants. Since the Tribunal has not considered the said Bank Certificates, in our opinion, it is just and proper to set aside the impugned orders of the Appellate Tribunal and direc....... + More

Jurisdiction - power of Single Member Bench to decide appeals under the provisions of FERA and FEMA - appellants’ contention is that Section 52 of the FERA does not allow any Single Member to hear and decide the appeals where the order imposing a penalty exceeds ₹ 2,50,000 was a provision under the FERA, 1973 - HELD THAT:- As per Section 12 (6A) of SAFEMA, the Chairman of the Appellate Tribunal may constitute a Bench with one or two Members and a Bench so constituted may exercise and discharge the powers and functions of the Appellate Tribunal. Even the erstwhile Section 20 of FEMA (rescinded vide Finance Act 2017) had provisions to constitute Bench with one or more Members - while the Appellate Board of FERA has been dissolved with the coming into effect of FEMA on 01.06.2000, the Appellate Tribunal set up under SAFEMA will b....... + More

Hawala transactions - Receiving payments under the instructions of persons resident outside India - contravention of Section 3(c) of FEMA, 1999 - distribution of payments under the instructions of persons resident outside India - contravention of Section 3(b) of FEMA, 1999 - imposition of penalties - relaibility on retracted statements - opportunity of cross-examination - principles of natural justice. HELD THAT:- The appellants’ contention that they had retracted the statement is a little difficult to accept. The retraction was purportedly done by sending a letter to the Directorate of Enforcement on 15.09.2011 by Shri Shamsher Singh and 04.08.2011by Shri Dimple Thakur. In the case of Shamsher Singh it was done after 43 days from his first statement and after recording eight statements on different dates. Moreover, the appellant ha....... + More

Receipt of payments under the instructions of a person resident outside India - delay in issuance of SCN - Validity of confession - HELD THAT:- The statement recorded from the appellant does not contain any admission/confession and instead contains clear denial of any involvement in the case. The issuance of the show cause notice and the findings of guilt solely basing on the discrepancy in the travel details of the appellant is unsustainable. The appellant was in India as per pass-port details produced by the respondent. The appellant has also failed to produce his pass-port when his counsel was asked who only stated now that the same is not traceable. Therefore, presumption is that he may be the same person as alleged by the respondent - It is stated that he is a poor old man and suffering from Parkinson Diseases and showing symptoms of....... + More

FDI - Automatic route or not - Inward remittances made into India in the year 2008, through normal banking channels (with relevant foreign inward remittance certificates) - bidding of IPL - It is case of appellants that the appellants’ bid in respect of the ‘Rajasthan Royals’ franchise as legitimate and successful, after due scrutiny of all the information and proposed investment structure as furnished along with the bid - contravention of the provisions of Section 3(b), Section 6(2), 6(3)b & Section 42(1) of FEMA, 1999 read with Regulation 5(1) of Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000, Paragraph 8 of schedule of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulation, 2000, Regulation 5 of....... + More

Rectification of mistake - impugned order rejects the rectification application merely on the ground that the order was dictated in the open Court and the objection now raised was not urged by the Petitioner at the time of hearing of the appeal leading to the order dated 5 July 2018 - HELD THAT:- The Respondents have not appeared despite service. However, it would be appropriate that we should give one more opportunity to the Respondents to present their case. In that view of the matter, we direct the Petitioner to serve the Respondents once again along with copy of this order. It is made clear that on the next occasion, if the Respondents do not appear, we are likely to consider the petition on merits for final disposal. The petition is adjourned to 19 September 2019.

Recovery of Service Tax - Post GST - proviso to section 73(1) of the Finance Act, 1994 (Finance Act) read with sections 142 and 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- We are not inclined to entertain this petition as only show-cause-notice is issued which involves investigation into facts. It is appropriate that the Petitioner responds to the same on merits and also bring to the notice of the Adjudicating Authority the decisions which, according to the Petitioner would conclude the issue in its favour. It would be open for the Adjudicating Authority to consider the issue of limitation, merits and all other submissions made by the parties - petition dismissed.

Recovery proceedings - demand of service tax - management consultancy service - fees paid to Hyatt International for the operation of Hotel - Business Auxiliary Service - miscellaneous payment to Hyatt International - Maintenance or repair service - subscription and maintenance of Software - Business Auxiliary Service - Reservation expenses, Hyatt Gold Passport, Hyatt chain services - Interior Decorator Service - penalty on Design and Consultancy charges - penalty on Advertising Agency Service - Business Auxiliary service - Currency Conversion Fee - Convention Centre Services - miscellaneous Revenue like photocopies etc - Management consultancy service - fees paid to Hyatt International for the operation of Hotel - period 18 April, 2006 to 31 March, 2007 - HELD THAT:- In the present case, as the period in dispute is from 18 April, 2006 to....... + More

Renting of immovable property service - period August, 8/2008 to June, 6/2012 - eligibility for abatement of 40% in terms of notification no.26/2012 - service tax on letting out plant/machinery and fixtures to M/s. Mahindra Holidays & Resorts India Ltd. - Supply of tangible goods service - extended period of limitation - penalty u/s 77 and 78 of FA. HELD THAT:- The facts are akin to the ruling in the case of M/S JAI MAHAL HOTELS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (7) TMI 540 - CESTAT NEW DELHI], wherein it has been held that on true and fair construction of the provisions of Exclusionary Clause under Explanation I to Section 65(105) (zzzz) and in particular, sub-clause (d) thereof, it was held that renting of building used for the purpose of accommodation including hotels, meaning thereby renting of a building for a h....... + More

Permission for withdrawal of appeal - Liability of sub-contractor to pay service tax - HELD THAT:- The appeal is dismissed as withdrawn.

Validity of Recovery certificate - Rectification of error - error on the face of record or not - Section 74 of the Finance Act, 1994 - HELD THAT:- The petitioner failed to produce the relevant documents and to appear in the adjudication proceedings to make out a case and otherwise the Tribunal did not find mistake apparent on the face of record to rectify it. Rectification can be done when there is a defect apparent on the face of the record and to be rectified - there is no defect of nature which could have been rectified by entertaining the application under Section 74 of the Act of 1994. The application under Section 74 of the Act of 1994 is dismissed - petition dismissed.

Classification of services - Business Auxiliary Services or not - amounts received by the Appellants from the vehicle manufacturer/ dealer and accounted by them in their book of accounts as subvention income - Case of appellant is that since the subvention income is nothing but interest against the advances the same should not be subjected to service tax - recovery of amount not/short paid. Whether the amounts received by the Appellants from the vehicle manufacturer/ dealer and accounted by them in their book of accounts as subvention income should be subjected to service tax under the category of ‘Business Auxiliary Services’ as defined by Section 65 (19) of Finance Act, 1994? HELD THAT:- We are not in agreement with the submissions made by the appellants. Once we hold that the amounts received by the appellants as “sub....... + More

Rejection of Refund claim - time limitation - relevant date - Rule 5 of the CCR, 2004 - HELD THAT:- The relevant date for the purposes of deciding the time-limit for consideration of refund claims under Rule 5 of the CCR has been held to be the end of the quarter in which the FIRC is received in cases where the refund claims are filed on a quarterly basis and this finding is required to be applied to these cases as well since no contrary decision or order is placed on record. Reliance placed in the case of C.C.E., Cus. & S.T., Bengaluru Vs. M/s. Span Infotech (India) Pvt. Ltd. [2018 (2) TMI 946 - CESTAT BANGALORE] where it was held that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis. Refund allowed - appeal allowed - decided in favor of appellant.

Renting of immovable property service - Demand of Service Tax - CBEC vide DoF No. 334/01/2007-TRU dated 28.02.2007 - HELD THAT:- There is substantial merit in the argument of the appellant that the entire scheme was devised and executed much before the levy of service tax was introduced under the head of renting of immovable property service and therefore, the allegation that the appellant disguised the receipt of rent as non-refundable contribution is totally misplaced. A perusal of the SCN shows that there is no evidence whatsoever to support the allegation that what was collected was in fact rent and not non-refundable contribution. It is also seen that the entire scheme was devised under the supervision of Ministry of Textiles and it’s representatives. In these circumstances the allegation appears to totally baseless - demand is....... + More

Classification of services - Cargo Handling Service or port service - appellant has been providing the service of stevedoring service at Karwar Port and discharging the goods from the vessel to the wharf - HELD THAT:- The services rendered by the appellant does not fall in the category of Cargo Handling Service prior to 1.7.2003. Further, during the impugned period, the services rendered by the appellant fall in the category of Port Service and not Cargo Handling Service as held by the apex court in the case of DCCE vs. Sushil & Co. [2016 (4) TMI 987 - SUPREME COURT] and also clarified by the Board Circular dated 1.8.2002 - demand of service tax on Cargo Handling Service for the period 16.8.2002 to 30.6.2003 is not sustainable in law. Time Limitation - HELD THAT:- The entire demand is also barred by limitation because the show-cause n....... + More

Valuation - inclusion of reimbursable expenses in assessable value - C&F Agent service - HELD THAT:- The Commissioner (Appeals) though has set aside the demand on TDS and on reimbursement of certain expenditure but he has not given any specific finding on each of the reimbursable expenses viz. Godown rent, damage allowance, loading charges and demurrage charges - Further, all these expenses were reimbursed by the appellant for the various purposes incurred for carrying on the business of C&F Agent Service. The impugned order to the extent of Service Tax on reimbursement is liable to be set aside - appeal allowed - decided in favor of appellant.

Recall of an order - rectification of mistake - non-speaking order - case of appellant is that the conclusion of this Bench that the appellant had rendered other than legal services is an apparent mistake - HELD THAT:- There is no mention nor discussion as to the applicability or otherwise of various decisions relied on by the appellant in the impugned final order - There is no dispute that non-consideration of a judgment of the jurisdictional High Court or Supreme Court is itself a mistake/error on the face of the very order which could be rectified. Apparently, there is no discussion also on various documents like invoices etc., relied on by the applicant and furnished in the paper compilation, suffice it to say that non-consideration of the same amounts to passing a non-speaking order. The impugned final order is recalled and the Registry is directed to relist the appeal for fresh hearing in due course - application allowed.

Validity of show cause notice - Audit objections were already settled - Erection Commissioning and Installation Service - availment of abatement on job-work - benefit of N/N. 19/2003 dated 21.08.2003 as amended and N/N. 1/2006-ST dated 01.03.2006 - the objection was raised on the ground that the appellant has not sold any goods and material while providing services to the appellant, but, have received only the amount on job work done by them vide audit objection dated 17.01.2007. HELD THAT:- As the audit objection raised by the revenue has already been settled by them on 18.05.2007, in that circumstances, on the same audit objection, show cause notice cannot be issued to the appellant on 28.07.2009. Therefore, the whole of the demand on the basis of said objection is not sustainable and is also time barred. Benefit of N/N. 19/2003 dated 2....... + More

Commercial or Industrial Short payment of service tax - Construction Services - Work Contract Services - demand of differential service tax - case of appellant is that they have provided service alongwith material and have paid VAT thereon - HELD THAT:- As it is a fact on record that the appellant is paying VAT on the works contract amount, in that circumstances, the appellant has rightly paid service tax @2% of the value of works contract. Thus, the appellant is not required to pay further service tax on their activity and whatever service tax has been paid by the appellant is the correct payment of service tax payable by the appellant. Demand do not sustain - appeal allowed - decided in favor of appellant.

Classification of services - health services or support services of business or commerce? - revenue sharing basis - agreement with various doctors/consultants on revenue sharing basis whereby a part of the doctor‟s/consultants fee is retained by them in lieu of providing administrative support to them - HELD THAT:- The issue has been settled by this Tribunal in the case of M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] where it was held that the service provided by the respondent hospital would merit classification under Health Care Services extended to the patients. The appellant had not provid....... + More

Permission for withdrawal of appeal - monetary amount involved in the appeal - activity of providing erection, commissioning and installation services/work contract services - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. 11, 20, 077/- for the period from 2009-10 to 2012-13 and ₹ 59, 80, 109 alongwith applicable interest and penalty for the period 2013-14 is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.

Permission for withdrawal of appeal - Monetary amount involved in the appeal - Excess utilization of CENVAT Credit - It is alleged that respondent was entitled to utilize cenvat credit upto 20% of the service tax payable, whereas it was utilizing cenvat credit upto 100% of service tax payable - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22. 8. 2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i. e. 94, 57, 161/- is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.

CENVAT Credit - input services - transportation of excisable goods from its Chennai Unit I to Jamshedpur Unit 2 of the Assessee itself - place of removal - applicability of the case of Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] in the facts of present case. HELD THAT:- A closer and finer reading of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would clearly reveal that the Hon'ble Supreme Court was concerned only with the controversy of Cenvat Credit on goods transported from the place of removal to the buyers' premises and not the transport of goods from one Unit of the Assessee to another Unit of the same Assessee. In the context of the factua....... + More

Permission for withdrawal of appeal - monetary amount involved in the appeal - Refund of unutilized CENVAT Credit - export of services - HELD THAT:- At the time of hearing learned counsel for the appellant by citing letter dated 5.9.2018 written by Assistant Commissioner (Legal) CGST Gurugram, seeks permission to writhdraw the present appeal, as the revenue involved in the present appeal is 22.22 lakhs which is below the thresh hold limit prescribed by the Central Board of Indirect Tax and Customs as contained in instructions dated 11.7.2018. Appeal dismissed as withdrawn.

Recovery of amount due to Central Government - threat of coercive action - the second respondent has called upon the petitioner to remit the admitted service tax along with appropriate interest, penalty and late fee under the threat of coercive action. Since there was no compliance with the notice measures were initiated in terms of the Revenue Recovery Act. - applicability of Certificate No.1 of 2013 issued under Section 11 of the Central Excise Act, 1944 - HELD THAT:- The provisions of the Finance Act, 1994 are adequate to support the action taken in the present case for recovery. No doubt, the Certificate referred to in the impugned communication states at the top 'Section 11 Certificate No.1/2012' - However, mere reference to Section 11 (without even reference to the statute) would not vitiate the Certificate itself. Clearly, ....... + More

Permission for withdrawal of appeal - Process amounting to manufacture - activity of galvanization - HELD THAT:- The statement is placed on record. The appeal is, accordingly, dismissed as withdrawn.

Classification of goods - Light Diesel Oil (LDO) - the entire case is based on the opinion of the chemical examiner based on the internal test report of the appellants - Revenue neutrality - HELD THAT:- For the purpose of classification of the goods under the heading 2910 1940 as LDO, the product needs to answer to the definition of LDO appearing in para (f) of the supplementary notes to Chapter 27 Central Excise Tariff Act, 1985. While the IS parameters for LDO were changed in 2008, the said definition was not amended by Revenue. Post 2008 IS 1460:2000 apply solely to HDO and for the purpose of LDO, a different IS was introduced, namely IS-15770:2008. It is seen that the Revenue has not drawn any samples and has relied on the internal reports of the appellants to arrive at the conclusion that the product SRGO answers to the parameters pr....... + More

SSI Exemption - clubbing of clearances - request for cross-examination denied - section 9D of the Central Excise Act - HELD THAT:- A perusal of the SCN shows that reliance have been placed on the statements of these persons. These statements were recorded in the year 1988/1989. In absence of examination/cross examination no reliance can be placed on these statements. It is seen that case of the Revenue on account of clandestine clearance on the basis of documents which show difference between bank statements and RG-I register is also subject to interpretation given by Shri H.R. Patel in his statements. Shri H.R. Patel was also not examined/ cross examined. In the above facts and circumstances, the assertion of the appellant that long delay of 13-14 years and failure to conduct cross examination of various persons on whose statements Reven....... + More

Condonation of delay of 218 days in filing appeal - power of Commissioner (Appeals) to condone delay - Section 35 of CEA - HELD THAT:- The Commissioner (Appeals) has no power to condone the delay beyond the period of one month then the period of 60 days from the date of the order appeal against. The delay herein was much more than the said period of 30 days. The application in hand is not sustainable for the said reason and also for the reason that in filing the appeal before this Tribunal, there has been a delay of more than a month and the reason mentioned in the application for the said delay not appears to be sufficient cause specifically in the absence of any medical records for the purpose - Application dismissed.

CENVAT credit - time limit availing credit - sub-rule (7) of Rule 4 of Cenvat Credit Rules - HELD THAT:- It is not in dispute that when the credit was taken i.e. on 28.02.2015, proviso to sub rule (7) of Rule 4 of CCR provided that such credit could not have been availed. - proviso restricting the credit within 6 months will apply from the date 1.9.2014 for the availment of cenvat credit after that date. The rule was clear and there was no ambiguity in the Rule. The rule changed with effect from 01/03/2015 and the words ‘six months’ were changed to ‘one year’. - The amendment so made to the said proviso would have prospective effect. Consequently, the credit would not be admissible to the appellant since the duty was paid during the period 02.04.2014-31.08.2014 and credit was availed on 28.02.2015. Time limitation ....... + More

CENVAT credit - items which were cleared by the appellant as scrap or as un-used items or partially used items - case of appellant is that these goods are generated out of the items procured prior to March 1994 and therefore there is no question of reversal of Cenvat credit - applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 - HELD THAT:- Rule 3(5A) applies on capital goods on which credit has been taken and which are cleared as waste and scrap. The product has to be first been received as capital goods and on which the credit has been availed. Before invoking Rule 3(5A) of the Cenvat Credit Rules, 2004, it is necessary for the Revenue to establish that items of capital goods are cleared as waste and scrap and on which the appellant has availed Cenvat credit. The defense of the appellant throughout is that they have not availed Cen....... + More

CENVAT Credit - Partial writing off of inputs - reversal u/r 3(5B) of CCR - HELD THAT:- It is an admitted fact that the appellant has partially written off the value of certain inputs and has not fully written off. Further, as per the provisions of Rule 3(5B), the appellant is required to reverse the CENVAT credit if he has written off fully the value of inputs whereas in this case, the appellant has not fully written off - Further, in the case of partial writting off, the provision has been incorporated with effect from 1.4.2011 whereas in the present case, the period involved is prior to this date, therefore, this amendment is not applicable in the appellant’s case - demand set aside - appeal allowed - decided in favor of appellant.

Permission for withdrawal of appeal - Monetary amount involved in the appeal - refund claim - HELD THAT:- The appellant admits that in view of instructions dated 22. 8. 2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as claimed refund i. e. ₹ 23, 76, 046/- is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.

Permission for withdrawal of appeal - Monetary amount involved in the appeal - clandestine removal - HELD THAT:- The appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. ₹ 50, 53, 000/- approximately is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.

Clandestine removal - finished goods cleared without recording such clearance in their Daily Stock Register - demand based on allegation of shortage of goods - principles of natural justice - HELD THAT:- The reasons assigned for proposing the duty demand were the shortage of goods found during physical verification on 10.01.2011 and that the details of such goods were not reflected in the ER-1 returns filed during the impugned period from 28.02.2010 to 10.01.2011. It is found that the said physical verification was carried out as per the request of the Appellant to verify the destroyed goods and grant permission to restart production. In the Adjudication order, no finding has been given by the Asstt. Commissioner about the various correspondences exchanged between the Appellant and the Department though the table containing sequence of ev....... + More

Permission for withdrawal of appeal - monetary amount involved in the appeal - HELD THAT:- The appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. ₹ 52,84,424/- is to be recovered, which is below the monetary limit of ₹ 1 Crore. Appeal dismissed as withdrawn.

Refund claim - relevant date - CENVAT Credit reversed in excess of what was required to be reversed - common inputs used for both dutiable and exempted goods - Rule 6(3A) of CCR, 2004 - HELD THAT:- Rule 6(3A), Clause (f) which is applicable in the present case, there is no time limit provided for claiming the credit. Further, the relevant date as provided in Section 11B of the Central Excise Act is also to be counted from the date of adjustment of duty after the final assessment which is specially provided in Clause (eb) of Section 11B. Further, in the present case, the final adjustment happens on 30.11.2017 and that is the relevant date for the purpose of reckoning the period of limitation as provided in Section 11B and if that date i.e., 30.11.2017 is taken, then the refund claim filed on 4.7.2018 is within the period of limitation. Bot....... + More

Refund of the excess duty paid - provisional assessment - doctrine of unjust enrichment - Section 11B read with Section 12B of the Central Excise Act, 1944 - HELD THAT:- The appellant’s own case M/S TVS MOTOR COMPANY LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE& SERVICE TAX MYSORE [2017 (6) TMI 163 - CESTAT BANGALORE], this Tribunal has held that any appeal against the sanctioning of refund order, the Revenue cannot recover erroneously sanctioned refund by parallel proceedings by issue of SCN. The Division Bench of this Tribunal in the case of C.C.,C.E. & S. T- MYSORE VERSUS JK TYRE & INDUSTRIES LTD., VIKRANT TYRES LTD. [2018 (6) TMI 174 - CESTAT BANGALORE] has held that the test of unjust enrichment does not apply to the cases of provisional assessment. Refund allowed - appeal allowed - decided in favor of Appellant.

Clandestine removal - clearance of goods to 100% EOU - allegation of clearance of Polyester Yarn by the Appellants in the market has been made on the ground that the partners of M/s Sunshine Overseas in their statements stated that they did not receive any Polyester Fabrics - Demand mainly based on statements of various persons - cross-examination of statements not provided - HELD THAT:- During investigation the Appellant factory was also searched and no incriminating documents or evidences were found, which shows that the Appellant did not clear Polyester fabric to M/s Sunshine Overseas and instead cleared Polyster yarn in local market. Stock of raw material and finished goods etc. were found to be in order. Even, the statutory records were found to have been correctly maintained by the appellant firm and the same has nowhere disputed. I....... + More

Refund of Excise Duty - Time Limitation - relevant date - pre-deposit - Whether payment towards Excise duty can be construed to be payment made towards pre-deposit? - HELD THAT:- It is clear that the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed with the petition i.e. Challans for deposit of Central Excise Duty in Form No.TR-6, that too, without protest is the payment towards the Excise Duty and can never be considered as pre-deposit. If any payment is made as a pre-condition for exercising the statutory right it can be termed as pre-deposit. However,it cannot be equated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of du....... + More

Condonation of delay of 621 days in taking out the motion - HELD THAT:- The Applicant was under the impression that the appeal would be numbered and it would come up for consideration in normal course. When the reorganization of the Appellant took place, after the introduction of Goods and Service Tax Act, 2017 the papers regarding this appeal were transferred to Daman Commissionerate. It is at that point of time, on enquiry, the Applicant realized that the appeal was not numbered and it stood dismissed consequent to the order dated 17 March 2016 passed by the Prothonotary and Senior Master - On account of the above misunderstanding of the order dated 3 October 2016 passed by this Court, the Applicant could not take steps early to set aside the order dated 17 March 2016. We are satisfied with the reasons for the delay in filing this application - Notice of motion allowed.

Permission for withdrawal of appeal - monetary amount involved in the appeal - Condonation of delay of 1475 days in filing appeal - Section 5 of the Limitation Act - HELD THAT:- The appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. ₹ 62, 30, 807/- is to be recovered, which is below the monetary limit of ₹ 1 Crore. In view of the said instructions dated 22.8.2019 learned counsel for the appellant prays for withdrawal of the instant appeal, however the question of law raised would remain open. Appeal dismissed as withdrawn.

Maintainability of appeal - availability of alternative remedy - Process amounting to manufacture - excisability - printing of Signages (Sign Boards), Printed Digital Flex, Pylon Signs, Glow Signs etc., and supplying the same to various customers, like M/s.Reliance Retail, M/s.Arvind Styles, M/s.3M India etc. - demand of excise duty - HELD THAT:- We are not inclined to entertain this Writ Appeal, as we are of the opinion that the learned Single Judge was justified in relegating the appellant to the alternative remedy of the statutory appeal, provided under the law. No exceptional circumstances are found to allow such issues to be raised in Writ jurisdiction. Of course, the appellant is free to raise all the questions, including the question of lack of territorial jurisdiction, before the Appellate Authority, who is expected to decide all ....... + More

Evasion of Central Excise Duty - guilty of the offence set out under Section 9(1) of the Central Excise Act - special and adequate reasons within the meaning of proviso to Section 9 of the Act or not - HELD THAT:- Section 9 of the Central Excise Act, 1944, sets out the offences and penalties. The respondent, in this case, had admitted and they were also found guilty of the offence set out under Section 9(1) of the Central Excise Act. Proviso to Section 9(1) of the Central Excise Act, 1944, prescribes a minimum term of six months imprisonment. Of-course, if there are special and adequate reasons, it is open to the trial Court to sentence the accused for a term of less than six months. The learned Special Public Prosecutor appearing for the Department would contend that the reasons assigned by the Court below cannot be called as special and....... + More

CENVAT Credit - input services - Outward Transportation of Goods (GTA services) - period May 2016 to November 2016 and December 2016 to June 2017 - HELD THAT:- The Ld.Consultant has argued that the sale is on F.O.R. Destination basis, however from the records placed before me, I am not able to find sufficient evidence to establish this contention - It is necessary to establish place of removal in the present case. The adjudicating authority is directed to verify and determine the place of removal after appreciating the facts as well as the documents produced by the appellant - matter is therefore remanded to the adjudicating authority for de novo consideration of the issue. Appeal allowed by way of remand.

Benefit of exemption on Single Super Phosphate (SSP) - Bifurcation of components of the Single Super Phosphate (SSP) to deny exemptions - whether any exception was created by law so as to exclude from exemption and thus subject to tax any part of the value of such Single Super Phosphate (SSP)? HELD THAT:- On fact, there is no dispute that Calcium Sulphate is present in Single Super Phosphate (SSP). At the same time, it has not been resisted by the revenue that the presence of Sulphur in Single Super Phosphate (SSP) is only in the shape of Gypsum (CaSO4.2H2O) and not in it's elementary form. Exemption N/N. 440 dated 12.2.2001 - HELD THAT:- It is clear that amongst others, Phosphatic component of Single Super Phosphate (SSP) and not Single Super Phosphate (SSP) as a commodity was exempt. As to the percentage of Phosphatic component in S....... + More

Validity of revised assessment orders - TNVAT Act - grant of reasonable opportunity of being heard - principles of natural justice - HELD THAT:- This Court has already held that the two provisos under Section 22 (4) and proviso to Section 27(1) & (2) of TNVAT Act, are different as one makes a reasonable opportunity of being heard statutorily imperative, whereas the other merely makes reasonable opportunity to show cause against the impugned orders statutorily imperative. However, considering the nature of this matter, it may not be necessary to delve further into this aspect. In the instant cases on hand, the respondent Assessing Officer in his wisdom and at his discretion has chosen to offer personal hearing or otherwise given an opportunity of personal hearing to the writ petitioner. There is no disputation on this aspect of the mat....... + More

Principles of Natural Justice - grant of reasonable opportunity - TNVAT Act - detailed reply sent by the writ petitioner being reply to SCN/revisional notice not considered - errors in the computations that have been made by the Assessing Officer in the impugned order - Section 27(1) of TNVAT Act - scope of 'reasonable opportunity to show cause' and 'a reasonable opportunity of being heard' - Assessment of tax. HELD THAT:- Both these expressions have been underlined in the extracts and reproduction of same supra for the sake of convenience, clarity and ease of reference. No elucidation or elaboration is required to say that these two expressions are clearly different and distinct. It is also to be noticed that these two expressions are deployed in the same statute. Most importantly, both these expressions have been deploye....... + More

Purchase of High Speed Diesel Oil - inter-state purchases - concessional rate of tax - unable to download C-Forms - HELD THAT:- The issue is covered in favor of the assessee by a decision of this Court in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] where it was held that The respondents are directed to permit these petitioners to download 'C ' forms, as has been done in the past for the purpose of purchasing petroleum products against the issuance of 'C' declaration forms. Petition allowed.

Maintainability of petition - alternate efficacious remedy of appeal - section 26 of the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Section 26 of the said Act provides for an alternative remedy of appeal. The petitioner can avail of the alternative remedy of appeal. Even the issue of breach of natural justice is an issue which could be considered by the Appellate Authority, if that be factually so. There is no reason to exercise our extra-ordinary jurisdiction when there is an efficacious alternative remedy available to the petitioner under the Act - petition dismissed.

Condonation of delay of 101 days in filing review petition - HELD THAT:- The learned State Counsel concedes that the grounds raised in the present Review, have already been considered and rejected by the Full Bench of this Court, therefore, nothing would survive in the present review application and the same is liable to be dismissed. Review application dismissed.

Validity of assessment order - TNVAT Act - alleged unaccounted purchases of Cardamom - seeking opportunity to cross-examine the consignors mentioned in the notice - also seeking copies of transport bills, copy of payment and despatch details in regard to the twelve transactions - principles of Natural Justice - HELD THAT:- It is appalling that the impugned order of assessment proceeds to fasten tax liability of ₹ 14,53,811/- along with penalty of ₹ 21,80,717/- in such a careless and cursory fashion. None of the principles at play for framing of an assessment, such as consideration of the objections filed, grant of opportunity for personal hearing or application of mind by the assessing officer find place in the impugned order. The impugned assessment does not take into account any of the detailed submissions made by the petiti....... + More

Notification G.O.Ms.No.604, Revenue (CT.IV) Department, dated 22.04.2008 - Exemption from entertainment tax - exemption to feature films/low budget films produced in the then State of Andhra Pradesh - HELD THAT:- As per this G.O., the theatre proprietor not only had to intimate to the concerned Entertainment Tax Officer, in advance and in writing, the particulars of the feature film/low budget film produced in Andhra Pradesh which was being screened but also furnish a certified copy of the certificate of the Film Development Corporation. Logically, the Film Development Corporation would not be in a position to issue such a certificate without knowing the number of prints of the movie that had been released. As noted, a low budget feature film was one where the number of prints was less than 35. This fact could only be ascertained after re....... + More

Validity of assessment order - Section 25 of the Kerala VAT Act - assessment completed without issuance of SCN - Principles of Natural Justice - HELD THAT:- This Court is of the view that the assessment order dated 25.09.2018 is violative of principles of natural justice and contrary to Section 25 of the Kerala Value Added Tax Act. This Court is also satisfied with the explanation given by the petitioner that the petitioner is not served with the original copy of order of assessment dated 25.09.2018. This Court is not examining the merits or otherwise of the assessment order dated 25.09.2018. The assessment order is set aside and the matter restored to file.

Set off of tax paid on purchase of raw materials used in the manufacture of tubular poles - Claim rejected on the reasoning that the assessee had not raised any such claim in its return and, therefore, it was not permissible to grant the same at the stage of assessment - forfeiting the amount of the tax under Section 29-A(2) of the Act - HELD THAT:- To take the benefit of Section 4-BB of the Act, plainly, the assessee was required to make that deduction, at that stage, and not later. Then, looking at the notification no. 2339 dated 22.10.1996, read with notification no. 1223 dated 22.5.1998, under the conditions for grant of benefit of set off, it was clearly stipulated by way of condition no. 3 that it was permissible to the manufacture (of notified goods) to claim such deduction, by way of an option to the payment of full tax on sale of....... + More

Assessment of Sales Tax - estimation of Turnover - interstate sale - HELD THAT:- Merely because at the later stage, in appeal, the assessee sought certain information and also sought cross examination of the purchaser, it would not introduce any defect in the reasoning adopted by the first appeal authority. However, with respect to the quantification of the amount of undisclosed turnover, it does appear that the first appeal authority had taken note of the disclosed turnover as also the undisclosed turnover pertaining to Bill No.113 and estimated the total turnover almost twice of that value being ₹ 20,00,000/-. This being a case of central sales, in absence of any material and in absence of any reason being offered by the Tribunal, it appears, the Tribunal has clearly erred in enhancing the estimation made to ₹ 30,00,000/-. The order of the Tribunal dated 24.01.2008 is set aside and the order passed by the first appeal authority is restored - Revision allowed in part.

Amendment of Eligibility Certificate - Section 4-A(3) of U.P. Trade Tax Act, 1948 - whether the exemption granted to the assessee by the Divisional Level Committee under the Eligibility Certificate No.4324 dated 26.11.1998, as amended by Eligibility Certificate No.1596 dated 4.12.2003, could have been denied by the Commissioner in exercise of its power under Section 4-A(3) of the Act, when there was no allegation of any misuse of that Eligibility Certificate? HELD THAT:- In the instant case, it is wholly debatable whether the assessee was entitled to exemption on the investment made on dyes and moulds, merely because such dyes and moulds had been given out to job workers who used the same to manufacture the components that came to be used in the manufacture of the end product by the assessee, namely colour television sets. It appears to b....... + More

Validity of assessment order - A/Y 2012-13 to 2016-17 - petitioner was not given time to file their objections in response to the notices of proposals - Principles of Natural Justice - HELD THAT:- Admittedly, the Assessee has sought for time to file their objection through their letter dated 15.03.2019. Such communication was also received by the Assessing Officer, as found in the impugned order itself. If that be the case, the Assessing Officer is not justified in proceeding to pass the assessment orders without informing the assessee as to whether their request for time to submit their reply has been accepted or rejected. In both events, the Assessing Officer is bound to send a communication to the Assessee and inform the result of the request made by the Assessee. Admittedly, the orders of assessment were passed simply by confirming th....... + More

Illegal detention of goods along with vehicle - Section 53 of Karnataka VAT Act, 2003 - HELD THAT:- No doubt, the department may have good case on merits in respect of certain illegal activities alleged to have been committed by M/s.Siva Impex and the petitioner. Respondents/Commercial department shall have to resort for appropriate action/proceedings and they have no power to make such transmission of goods from one section to another section. Annexure-D dated 15.6.2017 is set aside reserving liberty to the Commercial Department to proceed in accordance with law against the petitioners as well as M/s.Siva Impex, if it is warranted - Petition allowed.

Refund of extra amount deposited during the pendency of appellate proceedings - petitioner claims that entire burden has been born but it only - whether the petitioner is entitled for refund of excess amount paid for the subject assessment years in terms of the judgment in Ext.P3 and/or whether Ext.P4 order gives finality to conclusions recorded in Ext.P3 judgment? HELD THAT:- when the Hon’ble Supreme Court while passing orders in Ext.P4 stated that applications for modification/ clarification stand rejected, anit means that firstly there is no necessity for clarification and secondly the modification of Ext.P3 judgment by issuing necessary directions is not warranted. The word ‘rejected’ is understood to mean to refuse to believe, anaccept, anor consider (something). Upon due consideration of the undisputed circumstance....... + More

Detention of goods - mis-declaration of goods - it was alleged that the goods were hosiery while in the bill the same were shown as knitted clothes - condonation of delay in filing appeal - HELD THAT:- The learned Tribunal while dismissing the appeal has categorically held that there was mis-description of the goods; the goods were not being transported in a goods vehicle; and the books of accounts were not produced at the appropriate time and production thereof at a later stage was nothing but an afterthought. Condonation of delay - HELD THAT:- It has been found that the appellate order dated 18. 12. 2014 was passed in the presence of the Chartered Account of the appellant and until and unless a specific objection is raised to the contrary, it would be presumed that the appellate order was received by the appellant in time. The said pres....... + More

Assessment of turnover - KVAT Act - CST Act - non-consideration of all points raised by the petitioner - HELD THAT:- A bare look at these exhibits demonstrates that the objections raised by the Senior Counsel on the mode and manner of examination by respondents is tenable. On the short ground of non-consideration of all the points raised in Exts.P4 and P5, order in Ext.P8 could be set aside - Accordingly, Ext.P8 on the short ground of non-consideration of objections in Exts.P4 and P5 is set aside and the matter restored to the file of the second respondent for consideration and disposal afresh in accordance with law. Petition allowed by way of remand.

Issuance of C-Forms - validity of Notification dated 11.10.2017 - interpretation of statute - amendment and scope of the word 'goods' - Situation of CST post GST - HELD THAT:- In view of the law laid down by the Hon’ble Apex Court in Printers (Mysore) Ltd.'s case [1994 (2) TMI 261 - SUPREME COURT], wherein it is clearly held that the use of the expression ‘goods’ referred to in the first half of Section 8(3)(b), i.e., on first three occasions can be understood in the sense it is defined in Section 2(d) of the CST Act, whereas the expression “goods” in the second half of the clause, i.e., on the fourth occasion does not and cannot be understood in the sense it is defined in Section 2(d) of the CST Act, as it refers to the manufactured goods, in the case of the writ petitioners, their end products n....... + More

Additions as sales suppression based on the alleged purchase suppression - Levy of penalty - TNVAT Act, 2006 - reconciliation of the profit and loss account with the monthly returns - HELD THAT:- The difference as alleged by the Enforcement Authorities is not be correct, particularly, in the light of the categoric reconciliation provided by the petitioner. The Assessing Authority has proposed a deviation based on the reply and reconciliation provided on 25.07.2014 and finally and as a last resort, he requests the Joint Commissioner to clarify what the purchase and sales turnover should be since he was unable or not in a position to determine the same from the proposal (the word 'proposed' in the reply appears to be an error of language). No reply was received as a result that the officer passed the impugned orders, adverse to the ....... + More

Doctrine or promissory estoppel - Incentive scheme - issuance of eligibility certificate - the date from which the incentives to be given to the Petitioner were to take effect - HELD THAT:- The Incentive Scheme has been framed by the State with a view to ensure equal distribution of wealth and means of production to the common benefit of citizenry of the State. The ostensible purpose was to encourage setting up of industrial units across the State of Maharashtra so that the employment is made available to greater sections of the society and the economy of the State as a whole stands to gain. The object and purpose of the Incentive Scheme is in consonance with the ideals held aloft by the directive principles of State policy contained in Part - IV of the Constitution of India, in particular, Article 39(c). In the case of CENTER FOR LEGAL R....... + More

Right to Privacy - Seeking information from the dealers of BPCL to ensure that the outlets are not operated on benami basis - Seeking copy of sales tax returns, bank account statements and income tax returns pertaining to their dealership - failure to furnish the information - HELD THAT:- In K.S. Puttaswamy [2017 (8) TMI 938 - SUPREME COURT], the Supreme Court has held that, the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India and as a part of the freedoms guaranteed by Part III of the Constitution. However, the Apex Court has further held that the right to privacy is not absolute. K.S.Puttaswamy holds that any action by the State or its agencies which curbs or restricts the right to privacy of a citizen shall pass each of the following three tests: ....... + More

Grant of Bail - commission of fraud punishable under Section 447 of the Companies Act, 2013 - siphoning off of funds - fraudulent availment of CENVAT Credit - FY 2009-10 to FY 2016-17 - HELD THAT:- It must be noted that even as per Section 212(7) of the Companies Act, the limitation under Section 212(6) with respect to grant of bail is in addition to those already provided in the Cr.P.C. Thus, it is necessary to advert to the principles governing the grant of bail under Section 439 of the Cr.P.C. Specifically, heed must be paid to the stringent view taken by this Court towards grant of bail with respect of economic offences. The High Court in the impugned order has failed to apply even these general principles. The High Court, after referring to certain portions of the complaint to ascertain the alleged role of Respondent No. 1, came to t....... + More

Stay on execution of order passed under Section 14 of SARFAESI Act, 2002 - possession of the property/secured asset - failure to make due repayment of credit facilities - NPA - HELD THAT:- The interplay between the SARFAESI Act and the right of the tenant was first examined by this Court in Harshad Govardhan Case [ 2015 (11) TMI 1315 - SUPREME COURT ]. It may be noted that the present appellant was a party to the aforesaid proceedings. This Court was confronted with the question as to whether the provisions of the SARFAESI Act affect the right of a lessee to remain in possession of the secured asset during the period of the lease. After noticing the scheme of the Act, this Court held that if the lawful possession of the secured asset is not with the borrower, but with a lessee under a valid lease, the secured creditor cannot take possessi....... + More

Prohibition on anti-competitive agreements - Anti-competitive restrictions - abuse of dominant position - HELD THAT:- Regulations 18 (1) and 20 (4) of the CCI Regulations, require the DG to investigate the matter i.e. the allegations “made in information or reference, as the case may be”, together with all evidence, documents, statements or analysis collected during investigation. The investigation has to be a comprehensive one. The DG may not, in fact, be able to anticipate what information may emerge during such investigation. Merely because the information that emerges does not pertain to the specific subject matter which the DG has been asked to investigate, would not constrain the DG from examining such information as well if it points to violation of some other provisions of the Act. Indeed, the directions given by the C....... + More

Demand of Interest on account of delay in payment of the penalty - violation of provisions of Section 3 of the Competition Act, 2002 - whether the petitioner is liable to pay interest to the CCI on account of delay in payment of penalty as levied upon it? - HELD THAT:- It is clear from the plain reading of Regulation 5 of the Recovery Regulations, that simple interest at the rate of one and one half per cent for every month, or part of the month, commencing from the date immediately after expiry of the period mentioned in the demand notice, is payable. The contention that since the order passed by CCI had been stayed, there was no delay in making the penalties, is unsustainable. The said issue is no longer res integra - In the STATE OF RAJASTHAN & ANR. VERSUS J.K. SYNTHETICS LTD. & ANR. [2011 (7) TMI 1300 - SUPREME COURT], the Sup....... + More

Smuggling - recovery of contraband - Section 42 of the NDPS Act - appellant has vehemently argued that the prosecution has failed to prove the case against the appellant - corroboration of statements - HELD THAT:- There is violation of mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. Their Lordships of the Hon'ble Supreme Court in Sukhdev Singh vs. State of Haryana, [2012 (12) TMI 982 - SUPREME COURT] have underlined the objects and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be constru....... + More

Uber’s discount and incentive policy - Abuse of Dominant Position - Infringement of Section 4 of the Competition Act, 2002 - HELD THAT:- ‘Dominant position’ as defined in Explanation (a) refers to a position of strength, enjoyed by an enterprise, in the relevant market, which, in this case is the National Capital Region (NCR), which: (1) enables it to operate independently of the competitive forces prevailing; or (2) is something that would affect its competitors or the relevant market in its favour. Given the allegation made, it is clear that if, in fact, a loss is made for trips made, Explanation (a)(ii) would prima facie be attracted inasmuch as this would certainly affect the appellant’s competitors in the appellant’s favour or the relevant market in its favour. Insofar as ‘abuse’ of dominant ....... + More

Dishonor of cheque - failure to disclose the material fact related to inter-corporate loan - cheating under Section 420 of IPC - Petitioner being director of the company - HELD THAT:- The petitioner alongwith R.C. Bagrodia and B.K. Ametha represented Accused Company and approached the complainant in June 1996 at Complainant's Registered Office in New Delhi and requested the complainant for inter-corporate deposit of ₹ 25 Lakhs and did not disclose the fact that the Accused Company has already undergone into winding up proceedings. However, they misrepresented the fact that the Accused Company is financially sound and the post dated cheque issued to the Complainant in lieu of the Loan amount will be honoured in the due course. The contention of the Ld. Senior Counsel on behalf of the Petitioner that at the relevant point of time,....... + More

Dishonor of Cheque - insufficient funds - section 138 of NI Act - acquittal of accused in respect of charges framed - Statutory presumption in favor of holder - HELD THAT:- Cheque embodied in Ext. CW1/B,upon its presentation before the Bank concerned, hence for want of sufficient funds, thereat occurring, in, the accounts, of, the respondent, stood declined, to be honoured. The memos, issued by the Bank concerned, making, the requisite echoing(s), vis-à-vis, Ext. CW1/B, upon its presentation therebefore, it being declined to be honoured, for, wants thereat, of, sufficient funds, being borne, in the accounts, of, the respondent/accused, are respectively borne in Ext. CW1/C, and, in Ext.CW1/D. This Court holds, that the learned trial Court, has not appraised, the entire evidence, on record in a wholesome, and, harmonious manner apart....... + More

Reference of dispute between the parties to the Arbitrator - scope of the terms of the agreement - Section 8 of the Arbitration and Conciliation Act, 1996 - application filed under Section 23 of the Societies Registration Act to Arbitration - HELD THAT:- Clause 19 shall be applicable in the event of any dispute and difference arising among the parties out of, in connection with or relating to the agreement - In the present case, the developers, owners, societies and the original owners and even subsequent societies formed are parties to the agreement and the Addendum. It is also required to be noted and, as observed hereinabove, the dispute is with respect to sharing of the rent of the leased space and it can be said that the respondents are also claiming the share relying upon the Development Agreements; Supplementary Development Agreeme....... + More

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - permission sought to cross-examine the respondent-complainant - HELD THAT:- Though there is no necessity to recall and reexamine complainant but Magistrate can pass a specific order to recall the complainant. Such an order is to be passed either on an application made by the accused or under Section 145(2) of the Act or suo motu by the Court. This court is not in agreement with the findings recorded by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross- examine the complainant a....... + More

Floatation of an e-tender no. 30/EQ/2018 dated 22.3.2018 for supply, installation and maintenance of 74 videoscopes at various field formations of CBEC - It is the case of the petitioner that the price sheet of the bidders disappeared form the portal of the Authority from 8.8.2018 till 6.12.2018 - It is also the contention of the petitioner that the bid of respondent No. 2 was non-responsive on account of column No. 3 relating to custom duty in the Price Schedule Bid having been left blank, and thus the same ought to have been rejected - HELD THAT:- There is no dispute on the basic facts viz. the nature of tender being was an Etender for supply, installation and maintenance on 74 Nos. videoscope; opening and closing date of the tender; the place of the opening of tender and the tender conditions. At this stage reference is required to be ....... + More

False declaration of caste - it is submitted that it was established from the Caste Scrutiny Committee reports that the respondent belonged to the extremely backward community and not to the Scheduled Tribe community and, consequently, had obtained employment in the petitioner Department on the basis of a false declaration of caste - HELD THAT:- As on date the caste certificate which was issued to the respondent-applicant in the year 1993 holds good so long as the decree of the Civil Court stands. In this background, we are of the considered opinion that the Tribunal has not committed any error in proceeding to issue a direction to reinstate the respondent-applicant who had already served for ten years when the verification began and he came to be suspended in the year 2010, i.e. almost after 17 years of his service. His dismissal came on....... + More

Retirement from service with immediate effect - petitioner being an IRS Officer - claim of damages made by the petitioner - powers conferred by clause (j) of Rule 56 of the Fundamental Rules - HELD THAT:- When alternative remedies under law are available to the petitioner for both the reliefs, what is so extraordinary in the claim for damages to maintain the instant petition and thereby, attract challenge to the orders passed under Rule 56(j) of Fundamental Rules, cannot be understood. More so, when, nothing has come to be pointed out that the order passed under Rule 56(j) was so patently erroneous or perverse, which invites interference by this court - Needless to say, the order passed under Rule 56(j) of Fundamental Rules cannot be adjudicated on the premise of inferences. In view of the foregoing, because the writ jurisdiction is unfet....... + More

Appointment of an arbitrator for adjudication of the disputes between the common appellant and the respondent - Section 11(6) of the Arbitration and Conciliation Act, 1996 - whether the Arbitration Applications, on the facts of this case, are barred by limitation? HELD THAT:- Since notice was served to the respondent in 2002, the provisions of the 1996 Act will be deemed to apply to the present Arbitration Applications filed by the appellant. However, it remains to be examined separately whether the aforesaid Applications have been filed within the statutory limitation period - Section 43(1) and (3) of the 1996 Act is in pari materia with Section 37(1) and (4) of the 1940 Act. It is well settled that by virtue of Article 137 of the First Schedule to the Limitation Act, 1963 the limitation period for reference of a dispute to arbitration o....... + More

Relief of permanent injunction - restraint on respondents/defendants from putting up any construction in the suit property - appointment of advocate to resolve the dispute - main contention of the revision petitioner/plaintiff is that though the respondents/ defendants 2 and 3 are aware of the fact that the suit property belongs to the Central Government, they attempted to tresspass into the suit property - time limitation. HELD THAT:- In the instant case, the revision petitioner/plaintiff did not seek for recovery of possession of the suit property from the defendants, especially when they admitted that the defendants had constructed a building in the suit property. Further more, it is seen from the written statement that the defendants have questioned the title of the plaintiff to the suit property. In such circumstances, it is the boun....... + More

International Competitive Bidding - impact of rate of GST on the price - rejection of petitioner’s price proposal - grievance of the petitioner is that having submitted a higher total price summary respondent authorities ought to have rejected the same submitted by respondent No. 4 by declaring it “unresponsive”. HELD THAT:- Ongoing through the terms of the RFP, it is clear that parties submitting the price bid had no option or discretion in respect of the rate at which they could quote GST. None of the bidders could gain any advantage by quoting the rate of GST as per their discretion. The total price summary quoted by the parties, as per the scheme of the RFP was to form the basis of evaluation inter se the parties. As far as the component of GST is concerned, the same was required to be included “as applicable&r....... + More

Dishonor of cheque - discharge of a legally enforceable debt - conviction of the revision petitioner - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- There is no impropriety, illegality or error warranting interference in exercise of the revisional jurisdiction of this Court. Execution of Ext. P1 cheque by the accused was proved by the evidence of PW1. The revision petitioner failed to rebut the presumption under Section 139 of the Act in any manner. The courts below have properly appreciated the evidence of PW1 and the documents marked on his side and reached the correct conclusion. Therefore, conviction of the revision petitioner under Section 138 of the Act is only to be confirmed. The courts below have only imposed a sentence of fine on the revision petitioner. There is also no sufficient ground to interfere with th....... + More

Dishonor of cheque - seeking 20% of the amount of dishonoured cheque as interim compensation - applicability of provisions of Section 143-A of Negotiable Instruments Act - petitioners submits that provisions of Section 143-A of the Act have been brought in force w.e.f. 1/9/2018 during pendency of the complaint therefore, they will not apply to the pending proceedings and will have prospective effect having application to the proceedings initiated after the amendment - HELD THAT:- Undisputedly the complaint in the present case under Section 138 has been filed on 21/1/2016. By the Negotiable Instruments (Amendment) Act, 2018 published in the notification dated 2nd August 2018, Section 143-A has been incorporated in The Negotiable Instruments Act, 1881 and vide notification published in the gazette dated 16th August 2018, the amended provisi....... + More

Extension of time for completion of the arbitration proceedings - beyond four months period from the date of first preliminary meeting - deemed Waiver of right to the extension of time - appellants have participated in the arbitral proceedings - HELD THAT:- It is clear from the bare reading of subsection 1(a) of Section 14 that mandate of an arbitrator shall terminate if it fails to act without undue delay. In the present case, the first preliminary meeting was held on 4th May, 2007 and the Arbitrator in terms of the agreement was supposed to conclude and pass the award within a period of four months which indisputedly stood expired on 4th September, 2007 and in the meantime the appellants recorded their objection of not consenting for extension of time beyond 4th September, 2007 and thus, it can be construed that parties were not in agre....... + More