Deemed dividend u/s 2(22)(e) - assessee herein is a shareholder having substantial interest in concerns imparting loan - HELD THAT:- What is required to be seen is whether CAPL has advanced moneys as pure loan amounts or for business purposes. The agreements produced by the assessee before Ld CIT(A), which were also confronted with the AO, would prove that the transactions entered between the parties are business transactions - both the companies are maintaining accounts as running accounts only and real estate investment activity was agreed to be a continuous activity. Hence the question of making one to one reconciliation, as contended by Ld DR. would not arise in these types of transactions - we confirm the order of Ld CIT(A) in deleting the additions made u/s 2(22)(e). Addition of unexplained investment - HELD THAT:- Since the additio....... + More

Rectification of mistake u/s 254 - HELD THAT:- Once a mistake/error is brought to the notice of the Tribunal, which is apparent on face of record, either by the assessee or the assessing officer, the Tribunal would have the necessary power to rectify/amend its order. This power will also extend to a situation, such as the one obtaining in the present case, where the petitioner’s counsel withdrew the appeal, for the reason that, the issue concerning transfer pricing adjustment in respect of the assessment year (AY) in issue i.e., AY 2011-12, stood resolved. The petitioner’s counsel, inadvertently, failed to bring to the notice of the Tribunal, that the issues raised in ground nos. 6 and 7 of the appeal were outstanding, and that they needed to be adjudicated upon. Thus, having regard to the aforesaid, we are of the view that the impugned order, passed by the Tribunal in the miscellaneous application deserves to be set aside.

Assessment u/s 153A - whether the seized material was under Section 132 or books of account, other documents or any assets are requisitioned under Section 132A? - HELD THAT:- Petitioner had filed their returns for the Assessment Year in question, which they thought was the true and correct return of income and that it contained all other particulars as prescribed. If respondent felt that was not enough and petitioner should file a fresh true and correct return of income because of the search, then respondent should certainly indicate in its notice what were the seized material under Section 132 or books of accounts or other documents or any assets requisitioned under Section 132A. Otherwise an assessee would file a copy of what it had filed earlier, which respondent anyways had in its file. Petitioner has also been seeking from respondent....... + More

Nature of gain - sale of technical know-how - slump sale - capital or revenue gain - goodwill liable to be taxed u/s 45 of the Act as capital receipt at the value given by the purchaser in its financials - HELD THAT:- It cannot be gainsaid that the assets were self-generated and the cost of acquisition of the said assets was indeterminable. The whole exercise was done by the Revenue merely for the reason that the purchaser in his books of accounts has shown the same as the technical know-how. If such technical know-how could not attract capital gains, in view of B.C.Srinivasa Setty [1981 (2) TMI 1 - SUPREME COURT] the Revenue has made an attempt to treat the technical know-how as goodwill in the second round. This reasoning of the Tribunal cannot be faulted with, in the light of the judgment of the Hon'ble Apex Court in B.C.Srinivasa ....... + More

Deduction u/s 35D - foreign currency convertible bonds [FCCBs] as debentures and considered it to be part of ‘capital employed’ for allowing deduction - whether FCCB convertible bonds are debentures or no? - HELD THAT:- As in terms of the Companies Act, 1956 debenture includes debenture shares and the bonds being interest bearing instruments which represent a loan, FCCB bonds, the instruments issued to investors for raising funds which is repayable after certain period is nothing but a debt instrument. This view is supported by the judgment of the High Court of Madras in case of PVP Ventures Ltd. [2012 (7) TMI 696 - MADRAS HIGH COURT] confirmed by the Hon’ble Apex Court 2014 (3) TMI 1127 - SC ORDER] by the Revenue. For the reasons aforesaid, the finding of the Tribunal that the increase or decrease in liability on accoun....... + More

Assessment of trust - Addition on account of provisions of gratuity and prior period expenses - AO observed that the assessee has not claimed exemption u/s 10(23)(iiiab) of the Act and failed to submit requisite Audit Report in form No.10B - HELD THAT:- As the assessee is an educational institution and existing solely for education purpose and not for the purpose of profit. It is noticed that the Assessing Officer has incorrectly stated that the assessee had not made any claim u/s 10(23)(iiiab) of the Act. In fact, the assessee had made claim u/s 10(23)(iiiab) of the Act. Therefore, we do not find any infirmity in treating the income at NIL by Ld.CIT(A). Thus, grounds raised by the Revenue are dismissed.

TDS u/s 195 - payment made by the assessee company to non-resident - whether it is in nature of royalty? - Rectification application u/s 154 - HELD THAT:- The core issue has been decided putting reliance on the decision of the Hon‟ble Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] that the payment made by the assessee company to non-resident are not in nature of royalty and therefore the assessee was not required to deduct TDS as per provisions of the Act. When the core issue is decided in favour of the assessee and against the Revenue, there ceased to be any obligation on the part of the assessee for deduction of TDS. The entire area of the appeal before us by the Revenue against the rectification order u/s.154 of the Act passed by the Ld. CIT(Appeals) is in....... + More

Disallowance u/s 14A r.w.r.8D - disallowance as per formula prescribed under the aforesaid Rules - HELD THAT:- CIT(A) deleted the disallowance under Rule 8D(2)(ii) made out of interest expenditure observing that the loan taken by the assessee was for specific purposes and further that the assessee had sufficient own funds in the shape of share capital and surplus to make the investments. He, therefore, relied on the decision in the case of “CIT Vs. REI Agro Industries Ltd” [2013 (12) TMI 1517 - CALCUTTA HIGH COURT]. DR could not point out any error in the above findings of the Ld. CIT(A). Disallowance made under Rule 8D(2)(iii) - CIT(A) relying on the decision in the case of ‘CIT Vs. REI Agro’ (supra) and in the case of “ACB India Ltd [2015 (4) TMI 224 - DELHI HIGH COURT] directed the Ld. AO to consider only ....... + More

Levy of penalty u/s 271(1)(c) - return of income was filed belatedly - HELD THAT:- Admittedly, there is no variation between the returned income and assessed income. Though the return of income was filed belatedly, nevertheless it is return of income under the provisions of section 139 of the Act and the findings of CIT(A) that the penalty is not leviable u/s 271(1)(c) of the Act is based on correct appreciation of facts and law governing the levy of penalty in the facts of present case. It is settled position of law that the penalty u/s 271(1)(c) of the Act is leviable with reference to concealment in the return of income. See NA MALBARY AND BROTHERS [1963 (11) TMI 5 - SUPREME COURT] and ONKAR SARAN AND SONS [1992 (3) TMI 1 - SUPREME COURT] In the absence of any variation between returned income and assessed income, no penalty u/s 271(1)....... + More

Reopening of assessment u/s 147 - Bogus loan transactions - assessee failed to establish the identity and genuineness of the entities - assessee failed to reply to the show cause notices - summon u/s 131 issued to the principal officers of both these entities were not accepted which were confronted to the director o the assessee - HELD THAT:- AO was clinched with specific information which indicated possible escapement of income in the hands of the assessee. The assessment u/s 143(3) was completed on 22/03/2013 whereas tangible information was received by Ld. AO vide letter dated 29/03/2017 wherein it transpired that the loans taken by the assessee during the year were from those entities which were involved in penny stock manipulation and provided exit to beneficiaries of Long Term Capital Gains. These two entities were allegedly dummy p....... + More

Assessment u/s 153A - Undisclosed investment in the residential buildup house - difference in values as declared by the assessee and as opined by the DVO, - Whether no incriminating evidence was found during the course of search relating to the part additions as confirmed by the Worthy CIT(A)? - Tribunal in the second appeal reversed the findings of the Ld. CIT(A) and deleted the addition holding that since no material was found during the search to justify the reference to the DVO, the action was not in accordance with law - HELD THAT:- As in the present case, the authorities below have not pointed out any corroborative evidence to show that the assessee had made investment in question more than the amount declared by the her during assessment proceedings. Hence respectfully following the judgment of Abhinav Kumar Mittal [2013 (1) TMI 62....... + More

Deemed dividend assessed u/s 2(22)(e) - HELD THAT:- As noticed that the decision rendered by Ld CIT(A) in deleting the assessment of deemed dividend in the hands of Prakash Ladhani has been upheld by the Tribunal on the reasoning that the transactions of advancing money by CAPL to BBPL are business transactions. Accordingly, we confirm the decision of ld CIT(A) in holding that there is no case for assessment of deemed dividend on merits and hence the protective addition made in the hands of the assessee herein is liable to be deleted. Unexplained investment as assessed protectively - DTVSV Scheme - Since the addition made on substantive basis in the hands of Shri Prakash Ladhani has been upheld by Ld CIT(A), the protective addition made in the hands of the assessee of the very same amount was deleted by Ld CIT(A). As further submitted tha....... + More

Validity of reopening of assessment u/s 147 - notice u/s 148 was not validly served - notice u/s 148 of the Act was issued on 12-03-2014 and it was served on the assessee by way of affixture only after six days, i.e. on 18-03-2014, as per the report of the serving officer -- mandation of serving officer has to show that all due and reasonable diligent efforts were made to serve the assessee/defendant with the notice - HELD THAT:- Without exhausting the regular / ordinary course of service of notice as provided under section 282 of the Act, the assessing officer has straight away proceeded to serve the notice by way of substituted service as provided under Rule 17 and 20 of Order V of CPC - there is nothing on record to suggest that before resorting to substituted service of notice issued under section 148 of the Act, the pre-conditions of....... + More

Assessment u/s 153C - Whether no addition/disallowance can be made in absence of any incriminating material found as a result of search and seizure operation? - HELD THAT:- As on the date of search and seizure operation, assessments for the impugned assessment years have not abated. A perusal of the assessment orders would reveal that the various additions/disallowance made by assessing officer, such as, disallowance of depreciation, cash credits, 14A disallowance, etc. are not based on any incriminating material found as a result of search. At least, in the body of the assessment orders the assessing officer has not made any observation to demonstrate that the additions/disallowances made are with reference to incriminating material found as a result of search. On a specific query from the bench, learned departmental representative while....... + More

Revision u/ 263 by CIT - revisional order passed ex-parte has observed that deduction claimed by the assessee on sale of agricultural land u/s 54B of the Act has been wrongly allowed without adequate enquiry and the order of the AO passed u/s 143(3) of the Act is vitiated by non-application of mind - principal allegation of the PCIT is that the land sold and then purchased by the assessee is not an agricultural land - HELD THAT:- We find the observations of the PCIT neither here nor there. It is manifest that the PCIT has proceeded on a total misconception of law in the given set of facts. Where the agricultural sold land situated is outside the municipal limits, it will not be deemed as capital asset under Section 2(14)(iii) of the Act at the first place and consequently there would be no liability of capital gain on the assessee at the ....... + More

Validity of reopening of assessment - non-service of notice u/s. 143(2) - as per AO Assessee did not comply with the notice u/s. 148 of the Act by filing the return of income, therefore he issued notice u/s. 142(1) of the Act calling for certain details which was also not responded by the assessee - HELD THAT:- We agree that the AO had no other alternative but to proceed with framing assessment u/s. 144 of the Act since it is admitted that the assessee had not filed the return of income pursuant to the service of notice u/s. 148 of the Act. Therefore, the AO rightly did not issue notice u/s. 143(2) of the Act, because there was no statutory requirement of the AO to issue the same. Ergo this legal issue raised stands dismissed. Non participation from the side of the assessee - Addition as long term capital gain - According to assessee this....... + More

Revision u/s 263 by CIT - scope of revisionary jurisdiction of ld. PCIT - validity of declaration made under IDS - income declared by assessee under IDS was accepted without any variation or objection - AO issued notice u/s 153C requiring the assessee to file return of income - search and survey of SRK group and it related parties, of which the assessee is also part, has resulted in to impounding of documents/ books of accounts and evidence related with evidence of undisclosed receipt and expenses in respect of project “Amrut Sarovar Residenty” - HELD THAT:- We find the there is no dispute that the AO while passing the assessment order accepted the claims of the assessee in non- speaking order. It is not the case of ld PCIT that the AO is not authorised (empowered) to accepted the return of income in non-speaking order. We hav....... + More

Validity of reopening of assessment u/s 147 - Period of limitation - notice issued beyond 4 years - taxability of goodwill as credited to the accounts of retiring partners - HELD THAT:- AO has power to reassess if he has reason to believe that any income chargeable to tax escaped assessment but however, the proviso limits that power that no action shall be taken after expiry of four years from the relevant assessment year, which means to say that if the AO has reason to believe that any income chargeable to tax as escaped assessment, the notice should be issued within four years from the end of said assessment year. Therefore, in our opinion proviso to section 147 of the Act is meant to limit the scope of provision u/s. 147 of the Act, going by this, it is safe to say that the proviso to section 147 of the Act is a qualifying proviso and ....... + More

Non speaking order passed by CIT-A - Disallowance of set off claimed - HELD THAT:- AO has not given any cogent reason or referred to the necessary provision of law as to why the claim by the assessee is not allowable. CIT(A) again has copied the order of AO not spelling out as to why and what violation of section 72 of the Act, the claim is being dismissed. Addition being the difference in business income arrived by the A.O - Again Ld. CIT(A) has passed a non speaking order. The Ld. CIT(A) mention that assessee could not file any documents and the reconciliation warranting, the AO to make the addition. But this is totally wrong appreciation as AO has mentioned that the reconciliation has been given by the assessee, but it is not acceptable. CIT(A) has passed the order without application of mind. It is settled law that even administrative....... + More

Addition invoking provisions of section 69 and 40A/40a(ia) - CIT- A deleted the addition - HELD THAT:- We agree with the Ld. Sr. DR that the orders of Ld. CIT(A) are cryptic and is passed without recording proper reasoning. The Ld. CIT(A) reproduced the submissions filed by assessee and decided the issue without giving reasons. In the interest of justice we remand this issue back to the Ld. AO to verify the claims in both the appeals based on evidences/submissions filed by assessee and in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. Revenue appeals stands allowed for statistical purposes.

Claims of amount paid for employees taken on Secondment - Revenue attribution - As submitted assessee was rendering management consultancy services to the group entities of K.K. Modi Group by availing services of seconded employees for which it was setup - HELD THAT:- AR has pointed out that in A.Y. 2011-12, assessee had taken on seconded employees who were originally employee in the flagship group company i.e. Godfrey Philips India (P) Ltd. and then seconded to the assessee on cost to company basis, without any mark-up. It has been further pointed by the Learned AR that no disallowance of secondment cost to employees was disallowed by the AO in earlier years. The aforesaid contention of the Learned AR has not controverted by the Revenue. We find that AO on one hand had held the secondment agreement to be not a genuine agreement but on th....... + More

Addition u/s 69A - Cash deposits during the demonetization period - Assessee submitted that the savings were out of accumulated savings in the form of pin money and minor cash gifts received by her from her parents and in-laws on the occasion of birthdays, anniversaries etc. - HELD THAT:- CIT(A) grant relief to ₹ 50,000/- and upheld the addition to the extent of ₹ 2,00,000/-. Before us, assessee has submitted that the deposits to be out of accumulated savings and out of the cash gifts received by her on the occasion of birthdays and anniversaries. It is also a fact that assessee's husband is an income tax payer working for an MNC. in view of the CBDT Circular vide Instruction No. 03/2017 dated 21st February 2017 and relying on the decision of SMT. UMA AGRAWAL BABA KAPUR SUNARAN KA MOHALLA VERSUS I.T.O -1 (3) GWALIOR, M.P. ....... + More

TDS u/s 195 - payments abroad of export commission to non-resident the foreign agent for the procurement of export orders - FTS' under the India-France DTAA - disallowance u/s 40(a)(i) - HELD THAT:- As relying on STERIA INDIA LTD. (EARLIER KNOWN AS XANSA (INDIA) LTD.) [2018 (4) TMI 578 - DELHI HIGH COURT] for bringing the services under the net of Fee for Technical Services (FTS) under the India France DTAA, the 'make available' clause has to be satisfied. But in the services rendered by the non-resident of procuring export order for the assessee, no knowledge has been provided to the assessee which could be exploited further by the assessee. In such circumstances, the services rendered by the non-resident cannot be held as 'FTS' under the India-France DTAA. Accordingly, such services will not be chargeable in India in....... + More

Assessment u/s 153A - Addition u/s 68 - action of CIT(A) in holding that no addition was warranted in the present case - HELD THAT:- CIT(A) while deciding the issue in favour of the assessee has given a finding that the original return of income filed by assessee was processed u/s. 143(1) of the Act and at the time of search action no assessment or reassessment proceedings were pending or abated. He has further given a finding that the addition made u/s. 68 of the Act was not based on any incriminating document/record or any other material found/seized during the course of search proceedings. Before us, no fallacy in the findings of CIT(A) has been pointed out by the Revenue. In such a situation, we find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed.

Revision u/s 263 by CIT - validity of declaration made under IDS - Before issuing the notice under section 153C of the Act, the assessee made disclosure under income disclosure scheme (IDS) - understatement of income of the project - HELD THAT:- The phrase 'prejudicial to the interests of the revenue' is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial to the interests of the revenue' has to b....... + More

Maintainability of petition - availability of alternate remedy by way of appeal - Violation of principles of natural justice - objections of the writ petitioner has not been considered - beneficiary of Input Tax Credit - HELD THAT:- If the articulation in the impugned orders is insufficient or in other words, if it is not ample or adequate, it becomes a question of whether it is terse and epigrammatic or laconic. Even a terse order can be eloquent. An order can be terse but epigrammatic. It can be tersely eloquent. An order can appear to give out reason, but it can be laconic. In this case on hand ITC being allegedly adjusted towards outward tax liability turns heavily on facts/figures and it would be appropriate for an Appellate Authority which can go into facts and have the benefit of records to go into this. Therefore, it cannot be gai....... + More

Principles of natural justice - seizure of goods alongwith the vehicle - levy of penalty - place of supply mentioned in the E-way bill is different from the actual place of receiver - suppression of sales or not - case of petitioner is that the appellate authority did not provide any opportunity of personal hearing to the petitioner - time limitation - HELD THAT:- In the present case, impugned order dated 02-07-2021 was duly communicated to the petitioner on the same day. Therefore, petitioner had to file the appeal within four months as outer limit (from the date i.e. 02-07-2019) on or before 30- 10-2019 whereas appeal was preferred on 16-12-2019. Although petitioner has taken the ground that petitioner received order dated 02-07-2019 on 30-07-2019 and if period is counted from 30-07-2019 also, even then outer limit of four months expire....... + More

Violation of the principles of natural justice - opportunity of personal hearing not provided - petitioner has not given any reply to the SCN - HELD THAT:- It is a fact that the Assistant Commissioner, Aruppukottai, by proceeding dated 21.05.2019, has issued a show cause notice and a copy of the same has been filed by the petitioner in this petition. This fact has been accepted by the respondent and a copy of the said notice has also been filed by the learned Government Advocate. The said notice has been responded by the petitioner assessee by reply dated 08.10.2020, with documents - the petitioner has given a reply once again on 14.10.2020 and the said reply was submitted to the respondent Assessment Officer in person and he having received the same has acknowledged by putting his signature and date and this is the evidence from the phot....... + More

Classification of services - job work service or not - activity of reshelling of old sugar mill rollers - HSN Code - whether is treatable as a job work service under SAC 9988 or is treatable as a repair/maintenance service under SAC 9987? taxable at 12% GST in terms of clause (id) of Sr. No.26 of Notification No.11/2017-CT(R), dt.28.06.2017 or will continue to attract 18% GST as earlier? HSN Code - HELD THAT:- Applicant receives old and worn out sugar mill rollers from its customers who have actually used the said goods and such use has resulted in wear and tear. The applicant make the said rollers reusable. As per section 2(68) of the CGST Act, 2017 jobwork means, 'any treatment or process' undertaken by a person on goods belonging to another registered person and the expression “jobworker” shall be construed accordin....... + More

Seeking a direction to upload the Form GST TRAN-1 within extended timeline - HELD THAT:- Identical issue decided in the case of M/S RATEK PHEON FRICTION TECHNOLOGIES PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER AND 2 OTHERS AND M/S MODERN PLYWOOD CENTRE, M/S ALLIED AGENCIES VERSUS UNION OF INDIA AND 5 OTHERS [2021 (9) TMI 1042 - ALLAHABAD HIGH COURT] where it was held that if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws) - thus, there is no hesitation in observing that a reasonable opportunity ought to have been granted to all “registered persons”/taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2. Petition is allowed.

Seeking a direction to upload the Form GST TRAN-1 within extended timeline - HELD THAT:- Identical issue decided in the case of M/S RATEK PHEON FRICTION TECHNOLOGIES PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER AND 2 OTHERS AND M/S MODERN PLYWOOD CENTRE, M/S ALLIED AGENCIES VERSUS UNION OF INDIA AND 5 OTHERS [2021 (9) TMI 1042 - ALLAHABAD HIGH COURT] where it was held that if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws) - thus, there is no hesitation in observing that a reasonable opportunity ought to have been granted to all “registered persons”/taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2. Petition is allowed.

GST Fraud - Misuse of Aadhar and PAN cards of writ petitioner - offence of issuing invoice without supply of goods in violation of TN-GST, C-GST Acts and rules thereunder - levy of penalty u/s 122(1)(ii) of TNGST and CGST Acts - HELD THAT:- This Court is of the view that owing to the nature of the stand taken by the writ petitioner and owing to this Court noticing that a criminal complaint has been lodged by the writ petitioner and investigation is under-way, it would only be appropriate to set aside the impugned order without expressing any view or opinion on the merits of the matter, leaving it open to respondents to proceed afresh either against writ petitioner or any other entity or person depending on the outcome of investigation that is under-way qua alleged misuse of writ petitioner's Aadhar and PAN cards to obtain a fake regis....... + More

Permission to carry forward unutilised CENVAT credit of duty paid under Central Excise Act, 1944 as well as the Input Tax Credit under VAT Act of the respective States - HELD THAT:- The issue decided in the case of UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, THROUGH ITS SECRETARY (REVENUE) VERSUS M/S ASAID PAINTS LIMITED [2021 (3) TMI 953 - KARNATAKA HIGH COURT] where it was held that the respondents-assessees are permitted to file/revise TRAN-1 either electronically or manually on or before 31.03.2021. Appeal dismissed.

Input Tax Credit - option to pay GST at concessional rate availed - other indirect expenses incurred for the purpose of business such as rent, commission, professional fees, telephone etc. - N/N. 8/2018- Central Tax (Rate) dated 25/01/2018 - HELD THAT:- From a reading of the said notification it is seen that the concessional rate under the notification shall not apply, if the supplier of such goods has availed input tax credit as defined in clause (63) of section 2 of the Central Goods and Services Tax Act, 2017, CENVAT as defined in CENVAT Credit Rules, 2004 or the input tax credit of Value Added Tax or any other taxes paid, on such goods. In other words, since the applicant has been availing the benefit of the said notification and paying GST at a concessional rate, they shall not avail Input Tax Credit. Other issues are withdrawn by the applicant - application disposed off.

Scope of Advance Ruling application - Classification of services - Works contract services - Krishna Bhima stabilization project - recipient of services - to be classified under sub-clause (vii) of serial no 3 of Heading 9954 (construction of service) substituted by way of Notification No 31/2017-Central tax (Rate) dated 13th Oct 2017 as amended to original notification 11/2017 - Central Tax (Rate)? - HELD THAT:- This authority is governed by the provisions of Chapter XVII of CGST ACT and the relevant Sections are 95 to 98, 102, 103, 104 and 105. As per Section 95, the term 'advance ruling' means a decision provided by this authority to an applicant on matters or questions specified in sub-section 2 of Section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant........ + More

Taxable services or exempt services - mixed supply of services to MCGM by the applicant - Toyota Innova or Equivalent Vehicles (6 Seater) registered in Tourist Category with All India Tourist Permit provided for Carrying Covid 19 Patients for Medical Treatment - HELD THAT:- Even though the applicant has submitted that the subject supplies would fall under no. 6 of twelfth schedule article 243W of the constitution i.e. “Public health, no evidence or documents have been submitted to substantiate their claims for exemption. Further, the only ‘SERVICE PURCHASE ORDER', submitted by the applicant mentions the description of service as “Adv for ambulance like Innova covid 19”. The applicant has not submitted that they have provided ambulance service for the covid patients. Neither have they submitted anything on recor....... + More

Input Tax Credit - inputs/input services procured by the applicant to implement the promotional scheme under the name 'Buy n Fly' - Section 16 read with Section 17 of the CGST Act, 2017 and TNGST Act, 2017 - HELD THAT:- The promotional scheme, 'Buy n Fly' is a scheme launched in the furtherance of business and the goods/services procured as a reward to the scheme are those procured in furtherance of business. The applicant has furnished the Tax Invoice for such purchases and it is seen that, the Invoice is raised on them only. The Prima facie conditions under Section 16 stands fulfilled. Section 17(5) of the GST Act, gives the situations wherein, even when such goods/services are procured for furtherance of business, the tax paid thereon are not available as Input Tax Credit. The said section starts with 'Non obstante ....... + More

Classification of goods - four toys in which physical force is the primary action and have electronic circuits/parts for providing light, music, horn etc arc ‘electronic toys’ - whether these toys will be taxable at 18% GST as per Sl.No. 440 of Schedule-III of the rate Notification or ‘Other than electronic toys’ attracting 12% GST as per Sl.No. 228 of Schedule --II of the rate Notification - HELD THAT:- The applicant arc trading the ‘toys’, viz., Children’s Scooter, Smart Tri-cycle, Activity Ride-on and Kick Scooter, which they have been considering as ‘Toys - Other than Electronic’ and has applied the rate as specified under Sl.No. 228 of Schedule-II of the Rate Notification. These toys are advertised to help the Kids to develop the motor skills. It is evident that the Tricycles, Sco....... + More

Principles of natural justice - request of the appellant to conclude the case without issuance of SCN - HELD THAT:- Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed. Whereas, on going through the content of the letter against which the appellant has filed the appeal, it is found that it is not a Decision or Order as there is no findings or observation are given in the said letter or no provisions of law/Act has been discussed in the letter accordingly, the said letter does not come under the purview of definition of order/decision. Though, the definition of order/decision has not been given in GST law/Act however, it has been defined in various....... + More

Seizure of goods - absence of E-way bill - Section 129(3) of UPGST Rules, 2017 - HELD THAT:- For the period 1.2.2018 to 31.3.2018, the condition of E-way bill has been held to be not applicable. The order dated 28.2.2018 passed under Section 129(3) of UPGST Rules, 2017 is quashed and all consequential proceedings stands dropped - petition allowed.

Artificial Increase in Valuation or not - express provisions not followed - HELD THAT:- Matter requires consideration. Learned Standing Counsel has accepted notice on behalf of all respondents. He prays for and is granted four weeks' time to file counter affidavit. Petitioners shall have two weeks' thereafter to file rejoinder affidavit - List thereafter.

Seizure of goods alongwith the conveyance - valid E-way bill or not - requirement of seeking extension of validity period of E-way bill - HELD THAT:- There is a categorical finding by the learned Judge that the conveyance had reached the destination on 1.1.2019 at 11.00 p.m. which was well within the prescribed validity period under the E-way bill. The appellant-authorities contention that the consignment was being delivered on 2.1.2019 and therefore, the goods cannot be transported cannot be acceded to. The materials on record clearly indicates that the action by the authorities was taken at the destination and not during transit and therefore, an inference has to drawn that the conveyance had reached the destination well within the subsistence of the valid period stipulated under the E-way bill. Appeal dismissed.

Levy of GST - activity of disposal of developed plots of land to allottee members of the applicant from and out of the land received from the TSIIC for specified purpose of industrial development - the activity failing under Entry 5 of Schedule III of Central Goods & Service Tax Act, 2017 and corresponding provisions under Telangana Goods & Service Tax Act, 2017 as amended - activity of infrastructure development (ID) of land received from the TSIIC for specified purpose of industrial development and undertaken on behalf of allottee members (allottee(s) or the member(s)) - “supply” under Section 7 of the Central Goods & Service Tax Act, 2017 & corresponding provision under Telangana Goods & Service Tax Act, 2017 as amended. HELD THAT:- There will be (2) sale deeds one between TSIIC and the applicant and the....... + More

Seeking grant of Anticipatory Bail - availing input tax credit either using the invoices or bills or fraudulently availing such input tax credit without any invoice or bill - procedure for raid carried on, without following the procedure as contemplated under law - HELD THAT:- The main aim of the Act is to simplify the taxation mechanism, to reduce the burden of taxes and clarify conformity of the tax payment. It also aims at consolidation of all indirect tax levies into a single tax and to remove cascading effect of the taxes. It is to achieve the motive of one nation one tax and to reduce tax evasion, to have corruption free tax administration, to reduce complications, encourage technically driven procedures and to provide ease of operation for e-commerce. If the citizens understand the importance of payment of tax, achieving the aims a....... + More

Cancellation of GST registration of petitioner - captioned writ petition pertains to cancellation of registration, but the same has since been revoked is learned Revenue counsel's say - HELD THAT:- Cancellation of registration has already been revoked - The revocation order dated 16.09.2021 has been placed before this Court by the learned Revenue counsel. The captioned Writ Petition is disposed of as closed.

100% EOU - non-fulfilment of export obligation - requirement that the entire manufactured goods shall be exported or the unit should achieve positive net foreign exchange earnings as a percentage of export fixed by the authority prescribed as per N/N. 53/1997 Cus dated 03.06.1997 - HELD THAT:- The matter under consideration would certainly go beyond the inter-se dispute between the parties and would partake the character of general public importance as enunciated by Hon’ble Apex Court in COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. [2019 (9) TMI 229 - SUPREME COURT]. More particularly, inasmuch as the interpretation of the Notification No.53/1997, the subject matter of the appeal as to whether duty could be levied if the unit fails to achieve Net Foreign Exchange Earning as a Percentage (NFEP) and Export Perfo....... + More

Seeking unconditional release of seized goods - Smuggling - Gold - Section 110(2) of Customs Act, 1962 - HELD THAT:- When the matter was taken up today, the learned counsel for the revenue has produced the original record before us and has pointed out that in pursuance of show cause notice dated 13.03.2014 issued to the appellant, adjudicating authority has passed an order originally on 28.02.2015 and as per the appellant on 13.03.2014. The appeal is disposed of with liberty to the appellant to challenge the order dated 28.2.2015 passed by the Adjudicating Authority by way of the appeal in accordance with law.

Entitlement to O&M benefits (fiscal benefits covered under Section 26 of the SEZ Act in respect of maintenance and duty free import to raw materials and consumables for generation of power) - period 01.04.2015 to 15.02.2016 - whether the condition that no duty free benefits for transfers to EOU is contrary to the SEZ Act and the Rules made thereunder? - HELD THAT:- It is apparent from Sub-section (8) of Section 15 of the SEZ Act that the Central Government has ample powers to impose certain terms and conditions subject to which a unit can carry out its operations - it is clear that the Central Government can introduce terms and conditions by notifying Rules or issuing guidelines in terms of which an approval may be granted. The letter of approval as contemplated under Section 15(9) of the SEZ Act is required to be issued by the Develo....... + More

Import on concessional duty which provided Zero duty in case of CIF value of ₹ 20 crores or more and a custom duty of 10% in the other eventuality - conversion of Zero Duty EPCG licence - HELD THAT:- Learned Counsel for the appellant submits that thereafter the duty amount was deposited on 16-4-2014 and subsequently even interest was deposited on being called upon to do so on 30-3-2018 and duly communicated as such, on 31-3-2018 - the subject matter of dispute stands resolved in the aforesaid terms and thus no further directions are required in this appeal. Appeal disposed off.

Levy of penalty - belated reopening of the case - Violation of principles of natural justice - detailed discussion not made - Imposition of penalty - HELD THAT:- There is lack of discussion and in-depth examination in light of the defence raised, inter alia, referring to worldwide operations and that the employees were working under supervision of the joint venture partner. Keeping in mind the statement made on affidavit that the appellant(s) has withdrawn from Indian market and have no active business operations in India anymore and that the appellant(s) have already deposited ₹ 38 crores covering the principal amount and possibly the part of statutory interest component, we are inclined to set aside the order imposing penalty on the appellant(s) in the peculiar facts of the present case. This order shall not be treated as precedent in any other case. These appeals partly succeed and the order of penalty is set aside.

Investigation proceedings regarding the anti-dumping - all that the High Court has done is to issue notice in the writ petition and the interlocutory applications calling upon the parties to file responses. - Recalcitrant attitude of the Government in not appointing High Court Judges for years together even where the recommendations have been cleared by the Collegium - HELD THAT:- If we peruse the impugned order, all that the High Court has done is to issue notice in the writ petition and the interlocutory applications calling upon the parties to file responses. This can hardly be a stage of a proceeding where the Supreme Court of the country should be asked to step in. The factual matrix paints an even a sorrier picture of the Government’s conduct as the Court, conscious of the urgency of the matter, on 4-6-2021 while issuing notic....... + More

Valuation of imported goods - Classification of goods - whey protein - efficacy of Section 3 of the Customs Tariff Act, 1975 and Section 4A of the Central Excise Act, 1944 - HELD THAT:- The view taken by the Commissioner in respect of classification of product specified as ‘whey protein’, is the correct view, which does not require interference. The Tribunal has rightly endorsed that position. It is a different matter that the Tribunal in the impugned judgment ought to have elaborated on the aspects dealt with by the Commissioner, to take that view. That does not take the matter any further for the Appellant-Department. However, the only indulgence that needs to be shown in this appeal is in regard to the issue of valuation. For, the Tribunal has not adverted to the efficacy of Section 3 of the Customs Tariff Act, 1975 and Sec....... + More

Export Promotion Capital Goods Scheme (EPCG Scheme) - import of capital equipments either at nil or concessional rate of customs duty - authority calls upon the petitioner to produce various export documents to establish the discharge of export obligation under the scheme, within a stipulated time - violation of the terms of the Scheme disentitling the petitioner to the benefit claimed - HELD THAT:- In the present case, since the exports were under free shipping bills, it appears that authorities have not had no opportunity or avenue to undertake any examination in the matter. However, and fortunately for the petitioner, the matter is still at large, since the show cause notices issued by R2 in respect of the exports undertaken under two licenses, are still pending. The dispute in this matter can thus be resolved by directing the ADGFT to....... + More

Seeking appropriate direction for encashment of the fixed deposits made in respect of the sale proceeds received by selling the unclaimed/uncleared goods at the bonded warehouse - Also, seeking handing over the residual amount after adjusting the Customs duty payable in respect of the items sold - HELD THAT:- The application along with the writ petition can be disposed of if the concerned office who can look into the issue of the computation of the Customs duty to be adjusted from the sale proceeds in terms of provisions of Section 150(2)(c). The matter according to the applicants/writ petitioners can also be referred to the Chief Commissioner of Customs, being the overall head so that any one representing the Customs Authority will be subordinate to him - Let this matter appear on next Friday (5-3-2021) when the department shall inform t....... + More

Condonation of delay of 584 days in filing appeal - certificate cases - the appeal was allowed on 2-7-2018, by the time this order was examined, it was 19-11-2020, i.e., over two years have passed - HELD THAT:- This is one more case of what we have already categorized as “certificate cases” and we do not delve further, as the purpose seems just to bring the matter to the Courts to put a closure to the same without giving any cogent explanation for condonation of delay in terms of OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT]. A correct view has been taken by the Tribunal as the Department itself is treating the assessee in the same manner for subsequent years so far as classification is concerned - the appeal is not liable to be entertained - Appeal dismissed.

Territorial Jurisdiction - Transfer of appeal - seeking issuance of directions not to hear the appeal by the Technical member whose appointment was challenged by the Advocate of the petitioner in the Honourable Supreme Court - HELD THAT:- It is not feasible that Mr. Raju, Member (Technical) attached at Ahmedabad, who is perpetually on tour and the matter to be heard while sitting with the Member (Judicial), is also on tour, thus, it would most appropriate and suitable approach, would be, to direct the Ahmedabad Bench of CESTAT to decide the appeal through video conference, for the reason, that one of the technical Member i.e., Mr. Raju would be also technical Member of Bangalore Bench. The review petition is disposed of directing that the appeal pending before CESTAT, Bangalore shall be heard by Ahmedabad Bench through video conference as....... + More

Manufacturing process taking place or not - aluminium alloy ingots - affixation of brand name - exemption under N/N. 93/2004-Cus dated 10th September 2004 - HELD THAT:- The scheme has been designed in furtherance of export promotion strategy and require compliance with ‘actual user condition’ with any sale or transfer of the imported goods or the goods manufactured therefrom permissible only after completion of the ‘export obligation’ prescribed in the licence issued by the Director General of Foreign Trade. It is on record that the said obligations have not been fulfilled with and the sole issue pending before the licensing authority is the clubbing of the licences. Hence, by the clearance of the goods, the condition in N/N. 93/2004-Cus dated 10th September 2004 has been complied with in its breach for which the d....... + More

Levy of Penalty u/s 114 of the Customs Act, 1962 - Smuggling - prohibited goods or not - Export of Red Sander logs under cotton tufted floor mats- colour - ASTD - also the fasteners (rivets) found on the Customs Sealing Point (latches) and Steamer Agent‘s Sealing Point (latches) of the container were found tampered - illegal omissions - scope of Section 107 IPC - HELD THAT:- The appellants plead total ignorance about the attempted smuggling of red sanders. The contention of the appellants that they kept the blank signed letter heads in the vehicle at the time of sale is too fanciful to digest. It is admitted by Shri A. Mohamed Naseer that there was omission on his part by giving the signed blank letter heads to Shri Farooq Basha. There is also an admission on the part of Shri Farooq Basha that he committed a mistake by leaving the s....... + More

Valuation of imported goods - Tin Free Sheets (Secondary/Defective TFSSD) - enhancement of declared value - it is alleged that the entire consignment was Tin Sheets of width of 500 mm, whereas, the goods were declared by the importer as Tin Free Sheets - contemporaneous imports of identical goods were not available - applicability of Rule 5 of Customs Valuation Rules, 1998 - HELD THAT:- The Tribunal vide its earlier Final Order, dated 11.12.2006 [2006 (12) TMI 575 - CESTAT CHENNAI] had remanded the matter with specific direction to supply copies of the details regarding the contemporaneous imports of similar goods which has been made the basis for enhancing the value of the imported goods and for re-determining the duty. In spite of such specific direction, the department has not provided the evidence regarding contemporaneous imports. Un....... + More

Application for extension of interim bail granted to the petitioner - Extension sought on the ground of excessive illness of wife, who is on one's deathbed - HELD THAT:- At this stage without going into rival contentions of the parties, the prima facie look at the photograph can be made wherein, the wife of the petitioner is almost lying in unconscious condition at home. At this stage without embarking upon the merits of the case, it would be just and appropriate to extend the interim bail till the next date of hearing i.e. 16.11.2021. Appeal disposed off.

Grant of anticipatory bail - 39,60,000 Cigarettes - illegal clearance of consignment - consignment was cleared manually without making any entry by the Customs Department - HELD THAT:- This Court finds that it is very strange and surprising that 02 Departments i.e. Department of Customs, Customs Commissionerate, Ludhiana - respondent No.1 and Anti-Evasion Unit, Central Goods & Service Tax, Commissionerate, Ludhiana - respondent No.2, are fighting tooth and nail regarding fixing the liability as to how the consignment was cleared manually without making any entry by the Customs Department and as per stand of the Customs Department, there is a collusion of the official of the CGST Department with the petitioner and the other accused and in that process, the CGST Department is posing the petitioner as a Secret Informer/Source and has eve....... + More

Applicability of precedent judgements - Refund of SAD - rejection on the ground of time limitation - N/N. 102/2007-Cus dt. 14/09/2007 - HELD THAT:- Learned Representatives fairly agree that the issue in appeal is subject-matter of difference of opinion by Hon'ble non-jurisdictional High Courts and that we do not have the benefit of guidance by Hon'ble jurisdictional High Court. There can be no dispute on the proposition that irrespective of whether or not the judgments of Hon'ble non-jurisdictional High Courts are binding on me, these judgments deserve utmost respect which implies that, at the minimum, these judgments are to be considered reasonable interpretations of the related legal and factual situation. Doctrine of precedence only mandates that it is the ratio in the decision of higher courts to be followed, and not concl....... + More

Jurisdiction - power of DRI to issue SCN - section 28 of Customs Act - HELD THAT:- Since both sides agree that the case is covered by Cannon India, and that the SCN was issued by DRI, the impugned order arising out of the SCN cannot be sustained as per M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], judgments of the Hon’ble Supreme Court in COMMISSIONER OF CUSTOMS, KANDLA VERSUS M/S. AGARWAL METALS AND ALLOYS [2021 (9) TMI 316 - SUPREME COURT], judgment of the Hon’ble High Court of Karnataka in SHRI MOHAN C. SUVARNA DIRECTOR (FINANCE AND ADMIN) M/S. GIVAUDAN INDIA PVT. LTD. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS, ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE, BANGALORE [2021 (8) TMI 178 - KARNATAKA HIGH COURT]and judgment of the Hon’ble High Court....... + More

Valuation of imported goods - related party transaction - rejection of declared value - failure of the appellant to submit evidence of identical/contemporary imports - imports of Rexona antiperspirants, comprising 150 ml units of ‘Free Spirit’, ‘Cotton’, ‘Icecool’, ‘Ionic’ and 75 ml units ‘Icecool’ and ‘Power’ brands - HELD THAT:- The benchmark for ascertainment of assessment is the ‘rate of duty’ in section 12 of Customs Act, 1962 and, to the extent of ad valorem rate, to be governed by the valuation scheme of section 14 of Customs Act, 1962 - the order disputed before the first appellate authority, and now before us, bears no evidence of such procedural or substantive compliance. Nor is there anything on record to instill confidence in us that such final....... + More

Revocation of Customs Broker License - forfeiture of the security deposit - levy of penalty - imports of mobile phones - excess of quantity declared - lacking in mandatory BIS marks - HELD THAT:- The allegations pertaining to breach of obligations and lack of proper supervisory control over employees has been held as proved along with the allegation that the licence had been transferred to Hitesh Ajmera who, admittedly, had been handling of not only the consignments involved in the said investigations but of many other imports and exports for several years. The embargo, in Customs Brokers Licensing Regulations 2018, on transfer of licence and the vicarious responsibilities for acts of omission and commission by employees are intentionally segregated from the obligations that are the essence binding the licensor and licencee vis-à-v....... + More

Effective date of Resignation from the post of Managing Director - Compiling Proceedings against the Director / Petitioner for Non-appointment of Woman Director in the company - case of petitioner is that he had resigned from the Directorship in the company with effect from 05.09.2013 and he had no control over the affairs relating to the company thereafter - Section 149 of the Companies Act, 2013 - HELD THAT:- The Assistant Director, Government of India, Ministry of Corporate Affairs, Chennai had issued summons to the petitioner and others to attend the said office to give evidence and to produce the books of accounts or any other paper in pursuant to the notice dated 17.03.2015. However, the petitioner failed to comply with the same. Thereafter, the respondent, filed a complaint under Section 207(4) of the Companies Act, 2013 against th....... + More

Transfer of shares - Oppression and mismanagement - restraint on Respondents from transfering /investment/assets - creation of further third-party rights on the shares held by the Petitioner in R11 and R12 - HELD THAT:- In view of the narration of facts by the Petitioner and grounds of oppression and mismanagement namely systematic assets stripping of Respondent No.1, Petitioners being kept away affairs of Respondent No.1, affairs of Respondent No.1 being conducted as sole proprietorship, unjustified transfer of Respondent No.12 to Respondent No.2 and breach of doctrine of legitimate expectation, it can be said that no prima facie case has been made out by the Petitioner to grant any interim directions to restrain the transfer of assets already made or creating any third party rights. The proposed EGM which is being challenged was held on....... + More

Approval of scheme of amalgamation and arrangement - sections 230-232 of the Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of notices also issued. The scheme is approved - application allowed.

Sanction of scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 and in terms of Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The objections/observations to the Scheme received from RD, RoC, OL, BSE, and IT Department have been adequately replied by the Applicant Companies and hence, there is no impediment in approval of the Scheme. The scheme is approved - application allowed.

Freezing of the assets and properties - Directions to Serious Fraud Investigation Office (SFIO) to conduct an investigation into the affairs of Videocon Industries Ltd. and its group companies - whether in the light of the petitioner’s plea that the proceedings before the NCLT, Mumbai Bench are without jurisdiction having been filed before a Bench whose jurisdiction has been specifically ousted by the proviso to Section 241(2), the writ petition ought to be entertained or the petitioner ought to be relegated to the NCLT/ NCLAT? HELD THAT:- The power of judicial review with which the High Court is vested under Article 226 of the Constitution cannot be taken away merely because an alternative statutory remedy of appeal is available. However, it cannot be denied that the power of the High Court to entertain a writ petition under Articl....... + More

Seeking extension of time to clear office objections with respect to Company Application - Section 10(F) of the Companies Act, 1956 - HELD THAT:- It must be borne in mind that the Appeals filed before us arise from the proceedings filed in Section 10(F) appeals and therefore the issue before the Company Court would be in respect of the management of Respondent No. 1 company. The Learned Single Judge has exercised his discretion in granting time to Respondent Nos. 1 and 2 to take steps to restore Company Application (L) No. 3 of 2017, which in our view is not perverse and does not warrant any interference. We are informed that Respondent Nos. 1 and 2 have filed Interim Application (L) No.15777 of 2021 in Company Application (L) No. 3 of 2017 for carrying out appropriate amendments since the form of Company Application (L) No. 3 of 2017 war....... + More

Seeking modification of the order of CLG - CLB directed the company appointment of two Government Directors/Government Nominee Directors - failure of the company in repaying the public deposits - Section 408 read with Section 397/398 of the Companies Act, 1956 - HELD THAT:- As rightly pointed out by the learned counsel appearing for the Union of India as against the claims of ₹ 156 Crores from the fixed deposit holders, even according to the company it has paid only a little more than ₹ 18 Crores and it cannot be said that either the original fixed deposit holders or any of the legal heirs or successors keep quiet without claiming their fixed deposits irrespective of issuance of any advertisements for this purpose. No valid reasons are shown. No details of the fixed deposit holders who have not claimed their deposits back are ....... + More

Approval of the Scheme of Amalgamation - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings issued - directions regarding issuance of various notices also issued. The scheme is approved.

Freezing of Assets and ‘Bank Accounts’ of the Appellant - Opportunity of Hearing provided or not - principles of natural justice - HELD THAT:- It must be borne in mind that the ‘Rules of Natural Justice’ are not the edicts of a statute. As a matter of fact, the rudimentary requirement is that (i) Fair play (ii) a Determination/An Adjudication is to be made after ascribing necessary reasons in a fair, just, and objective manner of course, based on the relevant facts/materials in a given case - an opportunity of hearing is to be afforded to an ‘individual’ to air / put forward is point of view by either contradicting or raising objection, in regard to the claim which is ‘Detrimental’ to him. No wonder, the ‘Rules of Natural Justice’ do supplement the Law and they do not ‘Supp....... + More

Sanction of Scheme of Arrangement by way of Amalgamation - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013, read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions issued with respect to convening/holding or dispensing with the meetings of the Shareholders, Secured and Unsecured Creditors as well as issue of notices including by way of paper publication as follows - directions regarding issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Scheme of Merger by way of Absorption - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensation of various meeting issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of the Scheme of Amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensation with various meetings issued - directions with regard to issuance of notices also issued. The scheme is approved - application allowed.

Seeking exemption to Applicant from servicing any loans to IL&FS in terms of the Corporate Debtor Restructuring dated 02.12.2011, pending disposal of application on the file of this Hon'ble Tribunal - HELD THAT:- It is a fact borne on record that the Appeal against the order passed by this Tribunal is pending adjudication before Hon'ble Supreme Court of India. Hence the prayer as sought for by the Applicant for early disposal of CA/32/2010 is premature, since the Hon'ble Supreme Court Is seized of the said matter and yet to pass a final order in CA/47/2011 and CA/101/2011 which is interconnected with CA/32/2010. Hence the prayer as sought for in (b) stands rejected. The Applicant ought not to have filed the present Application before this Tribunal seeking similar relief. It seems like the Applicant is indulging in forum sh....... + More

Composite Scheme of Amalgamation - seeking admission, fixing a date for hearing and final disposal of the Application as well as for a direction for publication to be effected and issuance of notices to the concerned authorities for objections, if any, to the Composite Scheme of Amalgamation contemplated between the Applicants - Section 230 to 232 of Companies Act, 2013 read with Rule 16 of the Companies (Compromise, Arrangements and Amalgamation) Rules, 2016 - condonation of delay of 72 days in filing the present petition - death of both the Counsels (being brothers) of the Applicant Companies due to Covid-19. HELD THAT:- The delay is condoned - the Petition stands Admitted - the date of hearing of the Petition filed by the Petitioner Companies for approval of the Scheme is fixed for 28.09.2021. Notice of the hearing shall be published i....... + More

Reduction of share capital - section 66 of the Companies Act, 2013 - HELD THAT:- The Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi, after receiving the report from the Registrar of Companies, has filed his report dated 12.03.2021. On perusal of the representation, the Regional Director has no objection to the extent of proposed scheme of reduction in share capital of the Applicant company - Notice was duly served on the Income Tax Department; despite several opportunities no one has appeared for the Income Tax Department. This tribunal vide order dated 26.07.2021 directed the applicant company to file an affidavit denoting that they are tax compliant and if any demand is raised by the Income Tax Department, with regard to any dues or arrears of Income Tax, the applicant company will make good the same as per....... + More

Sanction of Scheme of Arrangement - Sections 230 to 232 of the Companies Act, 2013, read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Various directions with regard to holding convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Approval of the Scheme of Amalgamation - Section 230 to 232 of Companies Act, 2013 read with the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Considering the approval accorded by the Members and Creditors of all the Petitioner Companies to the proposed Scheme and no sustainable objections having been raised by the Office of the Regional Director, Income Tax Department or any other interested party, there does not appear to be any impediment in granting sanction to the Scheme. Accordingly, sanction is hereby granted to the Scheme of Amalgamation proposed by the Applicant Companies under Section 230 to 232 of the Companies Act, 2013. The scheme is approved - application allowed.

Seeking appointment of Company Liquidator - seeking direction to the directors and officers of the Company to submit to the Liquidator, within 30 days from the date of order, the books of accounts of the company completed and audited upto the date of the order - seeking direction to the directors and officers of the Company to submit the statement of affairs of the Company under Section 274(1) - service of notice to the petitioner to whom the order required to be served - seeking order to constitute a winding up committee under Section 277(4) to assist and monitor the progress of liquidation proceedings - seeking permission to the Company Liquidator to submit the report under Section 181(1) read with Rule 25(1) within 60 days from the date of the order in this IA - seeking order to fix the fee of the Provisional Liquidator and the Company....... + More

Maintainability of petition - availability of alternative remedy of appeal - Principles of natural justice - due service of notice to all Respondents present in India and overseas - HELD THAT:- It may not be necessary to delve into detail the submissions made by learned Counsel for the rival parties. Suffice it to say that while learned Counsel for the Petitioners submitted that the impugned order was passed without providing due opportunity of hearing to the Petitioners and thus violative of the principles of natural justice, learned Addl. Solicitor General of India pointed out that Petitioners have got efficacious alternative remedy by way of appeal and therefore Petitioners should be relegated to the appellate forum. Union of India had made all possible efforts to serve copies of the Petitions to the Respondents either by email or by d....... + More

Territorial Jurisdiction - Validity of continuation of EOCC.No.104/2016 now pending on the file of the learned Additional Chief Metropolitan Magistrate, Economic Offences Wing-1 at Egmore, Chennai - HELD THAT:- The privilege provided to the respondent/complainant of explaining why it was originally lodged in Chennai and if later lodged in Coimbatore, reasons for the same to be addressed to the said competent Court and the learned Magistrate may take a call on accepting or rejecting those reasons. It would be inappropriate for this Court to indicate to the respondent herein to prefer a complaint at Coimbatore. An obligation is placed on the respondent to explain the circumstances necessitating filing the complaint originally in Chennai and thereafter, shifting the said complaint to Coimbatore. Let those reasons be forwarded to the competen....... + More

Levy of fine on the corporate debtor - delay in making certain compliances in terms of Regulation 7(3) of SEBI (Listing Obligations & Disclosure Requirements) Regulations, 2015 - corporate debtor is undergoing CIRP during relevant time - moratorium is under effect - HELD THAT:- It is to be seen that the fine was levied for the delay in making certain compliances. In view of the fact that due to the failure of the Board of Directors of the corporate debtor in managing the company in a proper manner, the company went into the CIRP process. After the company was taken over by the applicant Resolution Professional, certain compliances have been made, may be belatedly and with regard to other compliances, the Resolution Professional explained the impediments being faced by him. In view of the moratorium declared in terms of Section 14 of t....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Personal Guarantor of the Principal Borrower - existence of debt and dispute or not - service of demand notice - Whether the ‘EECPL’ is the Corporate Guarantor and therefore ‘Corporate Debtor’ of the ‘Eastern Overseas, in terms of Sub-section (7) and (8) of Sec 3 of I&B Code and the applicable Rules will be ‘Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016’? HELD THAT:- The Adjudicating Authority has held that the Insolvency and Bankruptcy (Application to Adjudicating Authorities for Bankruptcy Process for Personal Guarantors to Corporate Debtors” Rules, 2019 will be applicable instead of “the Insolvency and Bankruptcy (App....... + More

Validity of Order directing Status Quo on the shares and assets of the Appellant Company - entire share transactions was a subject matter of challenge before the Hon’ble High Court of Delhi in various connected matters - HELD THAT:- It is seen from the record that the Respondent ‘M/s. Creative Souls Technology India Ltd.’ has been restrained by the Hon’ble High Court of Delhi in exercising any rights Qua such shares vide Order dated 19.07.2021 passed in OMP/1/COMM/213 of 2021. Learned Counsel for the Appellant has also filed an Additional Affidavit with respect to the first Respondent conducting Extraordinary General Meeting removing the existing Directors and appointing its own Directors at the Board of the Appellant and submitted that Contempt Proceedings were also being initiated before the Hon’ble High Co....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Pre-Existing Dispute or not - time limitation. Whether this Application filed under Section 9 of the Code is barred by Limitation? - HELD THAT:- The date on which the default occurred has been clearly specified in column 2(a) as December 19th, 2014. The only suggestion with respect to any acknowledgement is in para V in residuary point no. 8 in which the particulars of ‘Financial Debt’ with documents and evidence on record is required to be mentioned. In this column the disputed email dated 05.08.2015 is mentioned. Limitation is a mixed question of law and facts and no case has been made for extension of period of Limitation as the actual date of default is mentioned in the Section 9 Application....... + More

Condonation of delay of 52 days in filing the Appeal - Approval of Resolution Plan - Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Admittedly this Appeal has been filed against the impugned order dated 22 October 2019, and the Appeal was filed on 29 January 2020 with an Application for condonation of delay of 52 days. The present Appeal has been filed 98 days after passing the impugned order, i.e., a delay of 68 days, beyond 30 days, prescribed under Section 61 (2) of the IBC - that in fact, it is an admitted case of the Appellant that the present Appeal has been filed with the delay of 52 days and thus, the Appellant itself has duly admitted that the Appeal is beyond the condonable period of Limitation under Section 61 (2) of the I&B Code. Admittedly the present Appeal has been filed against the impugned order ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - creation of equitable mortgage over the Apartment proposed to be developed - physical possession of property taken over by first respondent or not - proceedings under SARFAESI Act is pending - HELD THAT:- There is no impediment for an ‘Applicant’ to prefer an Application under section 7 of the I&B Code, 2016 when already the proceedings under SARFAESI Act, 2002 are pending. For maintaining an application u/s 7 of the Code, an applicant is to establish the existence of a debt, which is due from the Corporate Debtor. In fact, the issue of whether there is debt and default can be looked into only if the Corporate Debtor disputes the debt or takes a plea that there is no default though ther....... + More

Maintainability of appeal - appeal filed within time limitation or not - power to review is an inherent power of the Tribunal or not - HELD THAT:- The Appellant came to know of order of approval of Resolution Plan on 17.10.2019, the maximum period of 45 days will expire on 1.12.2019. Even if an exemption for period of 11 days spent in getting certified copy of order is given, the period of limitation will expire on 14.12.2019. Thus appeal filed on 27.12.2019 is clearly time barred - Even if starting date of limitation is taken from 18.10.2019, when Respondent No. 1 filed reply to the notice dated 23.9.2019 on the online portal of Income Tax Department informing Appellant of the approval of the Resolution Plan, the maximum prescribed 45 days period of limitation would expire on 2.12.2019. After excluding 11 days period that was spent in ob....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Mere plain reading of the provisions under section 7 of IBC and Judicial Pronouncements thereon shows that in order to initiate CIRP Under Section 7 the applicant is required to establish that there is a financial debt and that a default has been committed in respect of that financial debt. That while dealing with the said matter, the financial creditor has clearly established that a financial debt in form of Short-Term Loan has been advanced to the Corporate Debtor which can be clearly substantiated by the copies of the Bank statement showing disbursal of Loan amount by the financial Creditor (Annexure-8) and the letter dated 23.04.2021 wherein, the Corporat....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Bench notes that the ample opportunity was given to the Corporate Debtor to file its reply. However, the Corporate Debtor failed to file reply before this Bench - The Bench further notes that till the date of the final hearing the Corporate Debtor did not choose to file any reply contesting above Company Petition and also did not comply the order dated 01.03.2021 wherein he was directed to file reply. Therefore, the Corporate Debtor's right to file reply was forfeited. The counsel appearing for the Financial Creditor invited the attention of this Tribunal to the relevant documents filed in proof of debt and default in support of company petition. Si....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is apparent from the records that a loan of ₹ 1,70,00,000/- was sanctioned by the Financial Creditor to the Corporate Debtor the repayment of which has been defaulted - Corporate Debtor first defaulted in payment of interest in January 2018. After this, the Financial Creditor requested payment on 15.04.2018. Upon request from the Corporate Debtor, on 03.05.2018 the Financial Creditor extended the period of repayment till the first week of July 2018. Having not received any amount, the Financial Creditor finally recalled its loan on 10.07.2018. As per Part IV of Form I, the date of default is 01.04.2018. The present Petition was filed on 30.01.2021, i....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Pre-existing dispute between the parties or not - HELD THAT:- The burden of proof lies on the Corporate Debtor to establish the pre-existence of dispute before this tribunal. As rightly pointed out by the counsel appearing for the Operational Creditor, in the minutes of the meeting dated 16.08.2016 which was annexed at page No. 117 it was clearly mentioned that the Corporate Debtor has assured to clear the outstanding amount of ₹ 46.5 Lacs as full and final settlement in three equal instalments that too by end of September 2016 - The subsequent email also clearly proves that the Corporate Debtor has assured clearance of the pending dues of the Operational Creditor which was withheld by the Corporate D....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - High Seas Sale Agreement - existence of debt and dispute or not - HELD THAT:- It is not in dispute that only based upon high sea sale agreements that the corporate debtor has engaged the services of the operational creditor to deliver certain goods from Indonesia to Cochin. However it is seen that after the goods have arrived at Cochin, the corporate debtor was not in a position to take delivery of those goods since the corporate debtor's client, namely, M/s. Mahe Convention and Events Centre, Kannur was constrained to stop the entire projects. However, it is a fact borne on record that based upon the amendment letter which has been issued during the month of October, 2016 the goods which were at the cu....... + More

Admissibility of application - monetary amount involved in the appeal - power of tribunal to review application - Fraudulent acts of the Respondents - pivotal submission is that ‘Fraud’ vitiates the ‘entire judicial proceedings’ and that if such fraudulent acts of the Respondents are permitted and the order passed by this Appellate Tribunal is not recalled - HELD THAT:- Resting upon ‘Review’ the ‘’Tribunal’’ would not rehear the parties on ‘Facts’ and ‘Law. No wonder, a re-appraisal of evidence on record for unearthing an error will amount to an exercise of ‘Appellate Jurisdiction” which is not permitted in Law. A ‘’Review’’ is not to be sought for a ‘Fresh Hearing’ or ‘Arguments’ or ‘Correction o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Existence of debt and dispute or not - time limitation - proper service of demand notice or not - HELD THAT:- The demand notice was sent to the registered address of the corporate debtor on 21.06.2018. It can be seen that the corporate debtor has replied to the Demand Notice on 29.06.2018 (Annexure-II(A)-24. Therefore, the question of non-delivery of Demand Notice does not arise at all. It can be seen that the operational creditor has replied to the response/reply vide notice dated 11.07.2018. In view of the same, it is held that demand notice has been duly served. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The respondent-corporate debtor has filed reply and raised obje....... + More

Liquidation of the Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- This Tribunal is of the view that the endeavours to obtain resolution of corporate debtor has failed and CoC in its commercial wisdom decided to liquidate the corporate debtor which does not require any interference, thus in present circumstances the CoC decision is appropriate. The corporate debtor KK Milk Fresh India Ltd., stands liquidated and the incidence of liquidation to follow, on and from the date of this order in terms of the provisions of IBC, 2016 and more particularly as given in Chapter-III of IBC, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017 - Application allowed.

Seeking approval of Resolution Plan - section 30(6) and 31 of the IBC, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The resolution plan is for the amount of ₹ 96.50 crores, which is to be paid in 150 days from the date of approval of Resolution Plan by this Adjudicating Authority and all the funds shall be sourced by the Resolution applicant through its internal sources which includes the working capital and through its FDR of ₹ 30,50,00,000/- with Yes Bank in the name of the Group Companies and the balance amount will be paid through the internal resources of the company - the resolution plan, as approved by the CoC, is found in accordance with the sub-section 2 of Section 30 read with Section 31 of the Cod....... + More

Liquidation of Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Appointment of Liquidator-Section 34(1) of the Code provides that where the Adjudicating Authority passes an order for liquidation of the corporate debtor under Section 33, the resolution professional appointed for the corporate insolvency resolution process shall, subject to submission of written consent act as the Liquidator for the purpose of liquidation. In the present case, the Resolution Professional has sufficient time available to file an application before Adjudicating Authority for liquidation of corporate debtor i.e. from 07.03.2021 till 23.03.2021. However, the application was filed on 02.11.2020 and no explanation with regard to the delay at least from 07.03.2021 to 23.03.2021 i.e., the date of passing of the resolution b....... + More

Approval of resolution plan - section 30 (6) of Insolvency and Bankruptcy Code, 2016 read with section 31 of IB Code and Regulation 39 (4) of The Insolvency and Bankruptcy Board of India (Insolvency Process of Corporate Persons) Regulations, 2016 - HELD THAT:- The Resolution Plan provides for the settlement of the claims of various stakeholders. The Resolution Plan also provides the background of the successful Resolution Applicant and its associates, and the financial capabilities of the successful Resolution Applicant. Hereafter, Resolution Plan is both feasible and viable, Resolution Plan also contains the procedure for its effective implementation of the Resolution Plan - the Resolution plan also provides for the appointment of RP as the person in charge to look after the implementation of the Resolution Plan. The Resolution Plan has ....... + More

Seeking grant of extension of time to continue the liquidation process for further period of one year with the exclusion of the lockdown period - HELD THAT:- It is seen from the averments made in the application, that liquidation in relation to the Corporate Debtor was ordered by this Tribunal on 27.08.2019 and as such the Liquidation period in relation to the Corporate Debtor is required to be completed on or before 27.08.2020. The Applicant in the Application has averred that the avoidance applications filed by Liquidator are yet to be adjudicated by this Tribunal and till such time the avoidance application is adjudicated, the Liquidation process in relation to the Corporate Debtor cannot be completed. Further, it is also seen that the assets of the Corporate Debtor are yet to be sold. This Authority feels that it is just and proper to....... + More

Directions of this Tribunal complied by the Respondents or not - Applicant submitted that the Respondents/Corporate Debtor has not handed over the books and records to the Applicant - HELD THAT:- It is seen that the documents in relation to the Corporate Debtor had already been handed over to the Applicant and the documents in relation to the Guduvancherry and Thiruvallur property belongs to 1st and 2nd Respondents. Further, it is averred that the documents relating to company affairs before the month of November 2015 were destroyed in the flood which happened during the year 2015. The Respondents are directed to extend full co-operation to the Liquidator in case of any documents are being sought for in future, for completion of the Liquidation process in relation to the Corporate Debtor - application disposed off.

Money Laundering - seeking grant of Anticipatory bail - criminal conspiracy - cheating and defrauding - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India - fraudulent transactions - requirement of custodial interrogation of the petitioner - HELD THAT:- In the present case, it is not disputed by the respondent that the petitioner has not joined the investigation. Rather, it is on record that the petitioner has joined the investigation more than 20 times. The statements of the witnesses U/s 50 of PMLA have already been recorded and there is only an apprehension that the petitioner would tamper with the evidence or threaten the witnesses but till date nothing has been placed on record to show that any....... + More

Permission of the Court to go abroad and visit USA and Dubai was sought, which was rejected - HELD THAT:- Counsel for the petitioner could not dispute that vide order dated 19.08.2021 passed in CRM-M No.33804 of 2021 filed by the petitioner, the similar prayer has already been dismissed by this Court. There are no ground to entertain this petition and the same is accordingly, dismissed.

Money Laundering - predicate offence - irregularities in the loan disbursement by the City Co-operative Bank - only contention of the Petitioner is that since the Petitioner himself has filed the FIR, if it is to be used against the Petitioner on the premise that it is a predicate offence, then there must be material that the Respondent No. 1 must demonstrate - HELD THAT:- The contention of the Petitioner that without having copies of the ECIRs, the Petitioner cannot approach the competent court with a prayer for anticipatory bail under section 438 of Cr.P.C. is misplaced. The Petitioner apprehends his arrest, and section 438 of Cr.P.C. provides a statutory remedy for such a contingency. The learned ASG has shown the file containing the statements recorded in furtherance of ECIRs. Considering that the Petitioner has a statutory remedy und....... + More

Money Laundering - procedure being followed by the AA for serving the Relied Upon Documents (RUDs) on the parties concerned - HELD THAT:- List for further hearing and for conclusion of submissions on behalf of all counsels, on 13th September, 2021 at 2:30 P.M.

Money Laundering - Provisional attachment of amounts that were frozen - substantive offence under Section 3 r/w Section 4 of the PMLA - HELD THAT:- Coming to Rule 3A of the Prevention of Money-Laundering (Restoration of Property) Rules 2016, this Rule is undoubtedly sequel to the inclusion of the second proviso to Section 8(8) of the PMLA. However, both the second proviso to Section 8(8) and Rule 3A use the expression "may" and not "shall". Where in a given case, the Special Court decides to proceed under the second proviso to Section 8(8), then Rule 3A prescribes a procedure for proceeding with the matter further and not otherwise. It is gainsaid that it is public money which, as narrated supra, had transcended into the hands of the accused and the respondent bank is justified in laying its claim for restoration of th....... + More

Money Laundering - reasons to believe possession of proceeds of crime or not - attachment of residential properties - sub-section (1) of section 5 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- We have refrained from delving into the factual narrative as stated in the impugned order of provisional attachment. This is so because we are of the opinion that when the matter is at the stage of adjudication under section 8 of the PMLA Act and adjudication hearing is fixed on 27th October, 2021, we should allow the statutory authority to deal with the matter in accordance with the statute. Of course the point of law raised by Mr.Nankani without adverting to the facts of the present case is an important one and as held by the Punjab and Haryana High Court in Seema Garg [2020 (3) TMI 460 - PUNJAB & HARYANA HIGH COURT] is certain....... + More

Seeking grant of Anticipatory Bail - Money Laundering - siphoning of funds - fake transactions - shell/dummy entities incorporated to perpetuate the fraud - HELD THAT:- Both the petitioners are said to be erstwhile directors of M/s. VMC Systems Limited, which was in the business of manufacture and sale of electronic products, with specific focus on AC-DC power convertors and communication products. A huge amount of about ₹ 1747.45 crores has been laundered/siphoned and that lead to registration of subject FIR No.15 of 2018 on the file of CBI, BS & FC, Bangalore. There are serious and grave allegations against the petitioners that they have indulged in money laundering offences by resorting to various dubious transactions in between the companies, involving the shell/dummy entities incorporated to perpetuate the fraud and siphone....... + More

Validity of Provisional Attachment of Bank Accounts - provisions for automatic or deemed extension of the Provisional Attachment Order under Section 5 (1) of PMLA Act present or not - HELD THAT:- The Adjudicating authority/Respondent No. 2 cannot be called a litigant or advocate or a quasi-judicial authority and cannot take the benefit of the order of the Hon’ble Supreme court passed in Suo moto Writ Petition (Civil) No. 3 of 2020 [2020 (5) TMI 418 - SC ORDER] by taking the stand that on the expiry of validity of the said provisional attachment order after 180 days under Section 5 (3) of the aforesaid Act, the same would be deemed to have been extended automatically by virtue of the aforesaid order of the Hon’ble Supreme Court when he was not required to pass any formal order of extension of the same under Section 8 (3) of the....... + More

Seeking grant of Bail - money laundering - scheduled offences - enjoying proceeds of crime in personal benefits - Section 120-B/294/341/406/409/420/467/ 468/471/ 506/34 of the Indian Penal Code and Sections 3/4/5 of the Pries Cheat and Money Circulation Scheme (Banning) Act, 1976 - Section 45 of PML Act - HELD THAT:- In the instant case the Petitioner is inside custody since 16th October, 2017 which means he has already incarcerated more than three years and 10 months. Apart from this, admittedly, the Petitioner is languishing in custody from 30th May, 2013 in connection with Kharavela Nagar P.S. Case No.44 of 2013 and subsequent registration of the CBI case. The instant case is concerning offences under the PMLA Act. So keeping in view the restrictions contained in Section 45 of the PMLA Act for grant of bail as well as the nature of all....... + More

Legality of arrest - validity in terms of A. 22 (2) of Constitution of India r/w s. 57 CrPC - application moved by the petitioner herein to declare the arrest of the petitioner as illegal was dismissed without any reason - what is the time of arrest of petitioner is 8:30 PM of 03.08.2021 or 7:55 PM of 03.08.2021? - HELD THAT:- Admittedly, the search started on 03.08.2021 in the premises of the petitioner at 8:30 AM and it continued till afternoon uptil 3 o’clock and thereafter the petitioner was taken to office of respondent for recording of his statement. It was recorded till 7.55 PM when he was arrested. He was then produced on 04.08.2021 at about 4 PM before the learned Court. The question is whether he was produced before Court within 24 hours of his arrest. Deepak Mahajan [1994 (1) TMI 87 - SUPREME COURT], Roshan Biwi [1983 (11....... + More

Acute shortage of staff members as also vacancies at the level of the Chairperson, Member (Administration) and Member (Law) - HELD THAT:- Considering the fact that benches of the Adjudicating Authority hold hearings, and the quantum of cases is considerable, it is not sufficient to merely fill up the vacancies as they exist today, but there is also a need to increase the manpower within the Adjudicating Authority, in order to enable the authority to function in an efficient manner. Insofar as the Chairperson is concerned, it is submitted by Mr. Mahajan, ld. CGSC, under instructions from Mr. Pandey, that the selection for the Chairperson is underway and is likely to conclude shortly - For the positions of Member (Administration) and Member (Law), the proposal for issuance of vacancy circulars is stated to be under consideration. Since thes....... + More

Seeking grant of stay on arrest warrants - Money Laundering - non-speaking order - issuance of non-bailable warrants for the appearance of petitioners - offence punishable under Section 3 read with Section 4 of the PML Act - HELD THAT:- Without commenting upon detailed merits of the cognizance order, it would suffice to hold that the petitioners have not been able to demonstrate any prima facie case for staying the impugned order by which cognizance has been taken against them. Looking to the various pronouncements of Hon’ble Supreme Court in which it has been held that severity of the offence for which a cognizance has been taken against the petitioners and other relevant factors, the trial court has discretion to issue non-bailable warrants. Keeping in mind that the cognizance has been taken for offences punishable under the PML A....... + More

Revival of twin conditions for bail under Section 45 of PMLA after having been declared as unconstitutional - parallel provision to Section 482 Cr.P.C. or not - limitation imposed on civil powers existed in Section 482 Cr.P.C. by Section 362 Cr.P.C. - HELD THAT:- The reliance placed by the applicant/petitioner on the decisions of the Hon’ble Supreme Court in cases of NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] as well as STATE OF PUNJAB AND SUMEDH SINGH SAINI VERSUS DAVINDER PAL SINGH BHULLAR & ORS. ETC. [2011 (12) TMI 656 - SUPREME COURT] is to state that inherent powers of the Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] the petitioner was ex parte/not heard and ....... + More

Money Laundering - seeking grant of regular bail - conspiracy - creating false and forged documents for the purpose of cheating and used the said false documents as genuine knowing fully well as false and made transactions in various banks fraudulently - satisfaction of condition of twin limitation for grant of bail u/s 45 (1) of PMLA Act - HELD THAT:- This Court without going into merits of the case, taking into consideration the factors that the petitioner has been languishing in jail from the last 360 days, petitioner himself voluntarily surrendered before the Court below in the year 2019, other accused were already enlarged on bail and the health condition of petitioner, this Court deems it appropriate to grant interim bail to the petitioner for a period one month on certain conditions. The petitioner shall be enlarged on interim bail....... + More

Applicability of application u/s 439(2) of the Cr.P.C. - accused is released from the ‘custody’ or not - decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act or not - irrelevant material acted upon or not - relevant material ignored or not? Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the ‘custody’? - HELD THAT:- The instant application filed by the prosecution under Section 439(2) is maintainable, although the accused actually has not been released. Primary objection as to the maintainability is overruled. Whether decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act? - HELD....... + More

Provisional attachment of immovable properties - scheduled offences under para ‘A’ of the schedule to the PML Act - proceeds of crime - recovery of cash amount form residential premises - equitable relief under the writ jurisdiction of this Court - Section 5(1) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The petitioners have not challenged the show-cause notice and are only seeking to challenge the provisional attachment order. The reason assigned by the petitioners is that the present challenge was filed before this Court on 28th April, 2021 i.e. much prior to the show-cause notice dated 17th June, 2021 and thus, the same will remains alive inspite of the show-cause notice. The petitioners cannot thwart the due process of law and halt the investigation under the guise of raising insignificant things. We have....... + More

Seeking grant of anticipatory bail - predicate offence - alleged irregularities in the utilization of funds of Government of India - pre-trial detention of the accused-applicant - Sections 120-B r/w Sections 420, 409 of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act against several persons - HELD THAT:- The twin conditions as imposed by Section 45 of PMLA cannot be looked into while deciding the bail/anticipatory bail application as the same are violative of Articles 14 and 21 of Constitution of India. The Hon'ble Supreme Court in different decisions held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail/anticipatory bail and should be loathed while extending the benefit of bail/pre-arrest bail to a person accused of such of....... + More

Attachment of property - proceeds of crime - first right or claim over the properties - HELD THAT:- The finding recorded is that the attached properties are not proceeds of crime. Mr. Vyas, the learned ASG is prima facie right in his submission that this particular finding recorded by the Appellate Tribunal would put an end to the criminal complaint filed by the appellant under the PMLA. It can be suggested that the Bank and the appellant may jointly put the properties to auction and try to fetch a good price. If successful in this exercise, then the amount shall neither go to the Bank nor shall go to the appellant, but we may ask them to deposit the entire amount with the Registry of this Court or we may ask them to open an Escrow Bank Account and deposit the same. We shall decide above the precedence once the auction is successful. Post this matter on 06.09.2021.

Money Laundering - proceeds of crime - power of Directorate of Enforcement to declare any property acquired by proceeds of crime - Section 5(4) of the PMLA, 2002 - HELD THAT:- A person who is interested relating to any immovable property or is claiming or is entitled to claim any interest in the property would be free to enjoy the said immovable property even if the same is attached. If the property is confiscated by the Central Government, such claimant with legitimate interest in the property or who may have suffered a quantifiable loss as a result of offence of money laundering may move appropriate application for restoration of such confiscated property or a part thereof - so far as interested person or any claimant is concerned, they did not have any locus to challenge the attachment order at all. While the statute protects them in s....... + More

Money Laundering - scheduled offences - hearing on charges and trial proceedings in subject Sessions Cases registered for the offences under PML Act before commencement of hearing on charges and trial proceedings in the subject Calendar Cases registered for the predicate/scheduled offences - conduct of trial proceedings of predicate/scheduled offences and offences under PML Act simultaneously or not - HELD THAT:- A bare reading of Sections 2(1)(u), 3 and 44(1)(d) of PML Act along with explanations thereof makes it clear that the offence of money laundering is a stand-alone offence and the trial proceedings are completely different to that of the scheduled offence. Trial of money laundering offence is independent trial and it is governed by its own provisions, it will not meddle with the trial of scheduled offence. Similar question came up....... + More

Simulatnaous Adjudication proceedings and criminal Prosecution - exoneration in adjudication proceedings is on technical ground and not on merit - Applicants have been exonerated in the adjudication proceedings on the allegations for which, they have been prosecuted by the SEBI - HELD THAT:- In the case of K.C. Builders (2004 (1) TMI 7 - SUPREME COURT)the Hon’ble Apex Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person, it is binding and conclusive and thus, the Prosecution cannot be allowed to stand. In case in hand, the Applicants have been exonerated in the adjudication proceedings on merits and not on technical ground, and therefore the Prosecution for identical violation shall continue, if the order passed by Securities Appellate Tribunal is quashed and set aside ....... + More

Recovery proceedings - Offence under SEBI Act - Denial of natural justice - whether the recovery notice is sustainable in law? - HELD THAT:- The order does not fix any particular liability to be discharged by the writ-applicants. If upon such order recovery is sought to be undertaken of an amount then it was expected of the concerned authority to at least issue a notice to the writ-applicants and give an opportunity of hearing before arriving at a particular figure. The impugned recovery notice is hereby quashed and set aside. The matter is remitted to the respondent No.2. The respondent No.2 shall issue notice to the writ-applicants and fix a particular date so as to give an opportunity of hearing to the writ-applicants and thereafter determine a particular amount to be paid by the writ-applicants to the depositors in accordance with law.

Compounding of offence under SEBI Act Rejected - guidelines for compounding under Section 24A - Whether accused/Company has wound up and refunded the entire amount collected under scheme to all their share holders/ creditors? - HELD THAT:- Indisputably, the learned Judge neither referred to wind up repayment report dated 22nd February, 2019, nor the orders passed by this Court in Company Petition; nor SEBIs’ circular dated 20th April, 2007, nor the Court obtained the views of SEBI before denying to compound the offence. The order dated 28th August, 2019 below Exhibit - 11 in SEBI Special Case passed by learned SEBI Special Judge is quash and set aside. As a consequence, learned Judge shall decide the application below Exhibit-11, in accordance with guidelines of the Hon’ble Apex Court set out in the case of Prakash Gupta [2021 (7) TMI 971 - SUPREME COURT]

Validity of appointment of Grant Thornton Bharat LLP (GTB) as a Forensic Auditor in respect of the financial statements of the respondent No.2/company - conflict of interest - violation of the principles of natural justice - absence of cause of action within the jurisdiction of this Court for maintaining the present petition - HELD THAT:- The “cause of action” is a bundle of facts which when taken together, with the law applicable to the said facts, gives a right to the plaintiff to seek relief against the defendant. In other words, cause of action is premised on the existence of a group of facts put together that would entitle a plaintiff to approach the court for a remedy against the defendant. In UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], it was held by the Supreme Court that in order to c....... + More

Fraudulent and Unfair Trade Practices - settlement in terms of SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 seeked - HELD THAT:- Petitioners are entitled to move application for settlement even at the appellate stage. However, for the said purpose, the petitioners would have to move appropriate application before the appellate forum. The said applications thereafter be rooted to the High Powered Advisory Committee which may examine the aspect keeping in view the fact that other similarly situated two companies (supra) have been allowed to get the matter settled and settlement orders have been passed in relation to the other similarly situated companies (supra). The issue with regard to the condition as laid down by the Internal Committee can also be examined by the High Powered Advisory Committee and it may ....... + More

Violation of the provisions of the SEBI Act - What exact violations raised - HELD THAT:- On going through Exhibit P3 show cause notice issued by the Deputy General manager of SEBI dated 13th March, 2020, we could not locate any such eventuality, apart from the same being explanatory in nature, enabling an aggrieved person to identify the exact violations raised against him and submit a reply understanding the gamut of the issues. Learned single Judge has rightly dismissed the writ petition holding that SEBI has power to initiate action against the appellant for violation of the provisions of the SEBI Act, 1992 - minute intricacies of the issues raised in regard to the power of the Deputy General Manager of SEBI, the question of limitation etc. are all aspects to be considered by the statutory authority in terms of the provisions of Act, 1....... + More

Compounding of offence - Price rigging and insider trading in the scrip of the Company - IPO issues - SEBI’s Investigation and the criminal complaint - HELD THAT:- The nature of the allegations against the appellant are such so as to preclude a decision to compound the offences. We have adverted, in a considerable amount of detail, to the circumstances which have been narrated in the counter affidavit filed by SEBI. We find merit in the submissions which has been urged before the Court by learned Senior Counsel who appeared on behalf of SEBI that the allegations in the present case involved serious acts which impinged upon the protection of investors and the stability of the securities’ market. The observation in the order of adjudication of the Chairperson of the SEBI dated 22 September 2000, that no loss has been caused to t....... + More

SEBI powers to issue directions and levy penalty - trustee’s decision to wind up a scheme of the mutual fund - Interpretation of the term ‘consent’ in Regulation 18(15)(c) - HELD THAT:- The quotation highlights that interpretation is sometimes a three-stage process. At first, the words being interpreted should be understood according to their grammatical meaning in their literal and popular sense. In the second stage, we consider whether in the given context the plain meaning is obscure as the text gives rise to choice of more than one interpretation, or the propositional interpretation fails to achieve the manifest purpose of the legislation, reduces it to futility, is practically unworkable or even illogical. In such cases at the third stage, the court applying interpretative tools selects or blue-pencils an interpreta....... + More

Modes of charging fees to clients by Investment Advisors - Constitutional validity and vires of Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisors) (Amendment) Regulations, 2020 (“Amendment Regulations”), by which Regulation 15A was inserted into the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 and Circular issued in pursuance thereof, being Circular Reference No. SEBI/HO/IMD/DF1/CIR/P/2020/ 182 dated 23.09.2020 challenged - whether the Board has the requisite authority under the SEBI Act, in the first place, to make regulations concerning charging of fees by Investment Advisors from their clients? - challenge is on the footing of both want of legislative power in SEBI (by delegated authority) to make a provision such as regulation 15A or to issue a Circular s....... + More

Diversion of funds - Show cause notice for violation of the PFUTP Regulations, 1995 and 2003 - WTM found that misleading statement was made by the appellant which was violative of Regulation 5 of the PFUTP Regulations, 1995 - HELD THAT:- We are of the opinion that there has been an inordinate delay in the issuance of the show cause notice. Even though there is no period of limitation prescribed in the Act and Regulations in the issuance of a show cause notice or for completion of the adjudication proceedings, the authority is required to exercise its powers within a reasonable period as held recently in Adjudicating Officer, Securities and Exchange Board of India vs. Bhavesh Pabari [2019 (3) TMI 197 - SUPREME COURT] In the instant case, we are of the opinion that the power to adjudicate has not been exercised within a reasonable period an....... + More

Investment Adviser entitled to charge fees for providing investment advice from a client in the manner as specified by the Board - Constitutional validity of Regulation 15A of the Securities and Exchange Board of India (Investment Advisers) Regulations, 2013 which was inserted by Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisers) (Amendment) Regulations, 2020, as also the consequential paragraph 2(iii) of the SEBI Circular dated 23 September 2020 - HELD THAT:- Under section 19 of the SEBI Act, the SEBI is empowered to delegate its powers and functions by general or special order in writing to any member, officer of the SEBI or any other person subject to such conditions as specified by SEBI. Accordingly, the SEBI had issued SEBI (Delegation of Statutory and Financial Powers) Order, 2019 dated 31-07-2019 ....... + More

Ex-parte adinterim order - Section 11 and 11B of the Securities and Exchange Board of India Act, 1992 - HELD THAT:- The appeals are disposed of in terms of the signed order.

Offence under SEBI - complainant foisting vicarious liability upon the accused No.1 - criminal breach of trust of the complainant and sold its shares to their own Company - HELD THAT:- After applying a ratio laid down by the Hon’ble Supreme Court in the case of Iridium India Telecom Ltd. [2010 (10) TMI 85 - SUPREME COURT] it is clear that, the accused No.1-Morgan is a necessary party for proper adjudication of the complaint. It is to be noted here that, the Letter of Pledge (Agreement) dated 7th March, 2000 is executed by the Authorized Signatory of the complaint on behalf of it, in favour of the accused No.1 company and therefore also impleadment of Morgan (A-No.1) is necessary for proper adjudication of the present complaint. The contention that, the accused No.1 is being foisted with vicarious liability, is the defence and a spec....... + More

Fraudulent collective investment scheme - HELD THAT:- The applicants company and their agents were engaged in promoting the scheme of the company by selling certificates with a promise of higher rate of interest on the eventuality of the plans of term, hence, it can be said that the activity of the applicants' company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 of the same Act, 1978, regarding which, there is sufficient evidence present for framing of charge against the applicants. As regards framing of charge under Section 10 of Protection of Depositors Interest Act, 2005, report of the Competent Authority does not appear to be a condition precedent for lodging of FIR or framing of charge against the ....... + More

SEBI seeking information from the petitioner regarding alleged deemed public issue - HELD THAT:- Awareness Programme conducted by the SEBI during the year 2017, a few investors reported that the petitioner Company has been mobilising funds from the public and have issued bonus shares. As alleged that the petitioner subsequently stopped buying back the shares - A preliminary enquiry made by the SEBI, it was noticed that the petitioner-Company has passed resolutions authorising issue of equity shares to any person including existing members of the Company in any manner the board may deem fit. The language of the resolution indicated that what was intended by the Company was not strictly private placement. It was under the said circumstances that the SEBI issued notices to the petitioner-Company. Though the information sought for were expect....... + More

Debenture Trustees liability in default - Violation of SEBI Act - Company issued Debentures which are deemed public issues, without complying with the statutory requirements for public issue - Company failed to provide the details as to whether the consent of the Debenture holders has been obtained, for extending the tenure of the Debentures - whether by acting as Debenture Trustees of the Company without having registration as required under Section 12 of the Securities and Exchange Board of India Act, 1992 read with Regulation 7 of SEBI (Debenture Trustees) Regulations, 1993, they have violated law. Section 12(1) of the SEBI Act, 1992? - HELD THAT: - No Debenture Trustee can deal in securities except under, and in accordance with, the conditions of registration obtained from the SEBI, in accordance with the SEBI (Debenture Trustees) Reg....... + More

Winding up of mutual fund scheme - Procedure and manner of winding up - Consent of the unitholders for winding up of mutual fund schemes - Rights and obligations of the trustees - objections to poll results - SEBI propounds that clause (a) of sub-regulation (2) to Regulation 39 is a standalone provision and the unitholders’ consent is not required when the trustees upon happening of an event form an opinion that the mutual fund scheme is to be wound up - SEBI (Mutual Funds) Regulations, 1996 framed by the Securities and Exchange Board of India (‘SEBI’) to hold that clause (c) to subregulation (15) of Regulation 18 mandates consent of the unitholders for winding up of mutual fund schemes even when the trustees form an opinion that the scheme is required to be wound up in terms of clause (a) to sub-regulation (2) of Regula....... + More

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- As learned senior counsel appearing for some of the objectors, who prays for some time to place on record the new facts, which have come to their knowledge today, by way of an application. She is permitted to file an application within three days. Response/reply thereto, if any, could be filed within three days thereafter. List on 01.02.2021 at 2:00 p.m. - on the said date we would first examine the objections to the e-voting results and the issue/question whether or not disbursal/payment to the unit holders should be made. Interpretation of the Regulations and other aspects would be be examined and decided thereafter.

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- E-voting results have been recorded in paragraph 36 of the said report and have been read out. The Registry would scan the report of the observer and make e-copy available to the counsel for the parties, including Advocates on Record who have filed application for intervention/impalement. Objections, if any, to the observer’s report/e-voting/result would be filed within three days. Response/reply of the same could be filed within three days hereinafter. On the next date of hearing, we would decide on the objections, if any; further procedure to be followed, and whether procedure under Regulation 41(1) in the facts of the present case is mandated. List the matters on 25.01.2021 at 2:00 p.m.

Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh. Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.

Foreign contributions - Prior permission u/s 11 to receive foreign contributions in the form of life saving equipment/articles for COVID-19 insofar as to expedite the relief work in our country - exemption to registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions - HELD THAT:- As exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the Learned Counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner ....... + More

Search and seizure operation carried out by the officers of FEMA - search and specific seizure of certain gold jewellery which, according to him, was part of the stock-in-trade - Jurisdiction of High court - HELD THAT:- As cause of action has arisen within the State of West Bengal, that is, the search and seizure has taken place in West Bengal and the petitioner company is situated at West Bengal, in my view, there is no impediment in entertaining this writ petition before this High Court. Clause (2) of Article 226 of the Constitution of India clearly allows this High Court to have jurisdiction in such cases wherein the cause of action has partly arisen notwithstanding the fact that the seat of the authority dealing with the issue is outside the jurisdiction. Search and seizure of the excess jewellery that has been seized by the Enforceme....... + More

Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 (‘CVC Act’) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule fo....... + More

Intimation by recipients of foreign contributions - Foreign Contribution Regulation Act, 2010 (“FCRA”) - peculiarities in the FC-4 Form, whereunder returns, regarding contributions received by beneficiaries under the Foreign Contribution Regulation Act, 2010 (“FCRA”) are required to be filed - petitioners’ accounts wherein foreign contributions were received were not in the SBI, till 7th October, 2020. As a result, the petitioners submit that it has become impossible for them to submit the return under FC-4 Form for the year 2019-2020.HELD THAT:- To a query from the Court as to how this situation could be remedied, Mr. Farman Ali, learned Counsel for the respondent, seeks a short adjournment in order to enable him to obtain instructions specifically on this aspect. However, he submits that no stay ought to be....... + More

Offence under FEMA - Distinction between the two stages of the adjudication process - eligible reasons by the respondent no. 1 for the formation of opinion to proceed with the inquiry against the petitioner - HELD THAT:- The Adjudicating Authority, under the Scheme of the FEMA, performs a quasi-judicial function as opposed to a purely administrative function. The requirement of giving reasons therefore cannot be undermined and must be insisted upon from the Adjudicating Authority. The reasons to be given for its opinion under Rule 4(3) of the Adjudication Rules to proceed with the inquiry though need not be as elaborate as in a Court decision or let’s say an order passed by the Adjudicating Authority under Rule 4(8) of the Adjudication Rules, but have to be adequate, proper and intelligible, sufficiently clear and explicit. They mus....... + More

Applicant in respect of Section 31(1) of FERA - time-limit for cognizance of any offence under FERA - suit for specific performance for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, 1908 (CPC) on the ground that the suit is barred by law - HELD THAT:- The statement in the plaint has been made with reference to the letter dated 14th December, 1989 from the lawyers of the plaintiff to Helen Wilson which reveals that Helen Wilson was a foreign national and hence came within the statutory requirement of Section 31(1) of FERA. This letter also reveals that Helen Wilson may not have had the permission of the RBI or communicated such permission to the plaintiff as on 14th December, 1989 which would be corroborated by the letter of 8th October, 1993 of the RBI granting permission to Hele....... + More

Search and seizure operation carried out by the officers of the Enforcement Directorate under FEMA - excess jewellery seized - HELD THAT:- With regard to the search and seizure of the excess jewellery that has been seized by the Enforcement Directorate, it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not. In the event, the Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passe....... + More

Rejection of permission to remit foreign exchange - FEMA ODI Regulations - approval on the basis of the reservations expressed by ED - as the wholly owned subsidiary of the respondent has already taken the credit of foreign exchange from various lenders and the foreign exchange has already come to the country. It is only this foreign currency which is now being repaid by the respondent - Writ of Mandamus, directing Respondent to permit Petitioner to make additional commitments and payments of USD 300 Million to its wholly owned subsidiary namely Jindal Steel and Power (Mauritius) Limited by way of equity subscription or loan or corporate guarantee or bank guarantee or through other permitted mode from Indian Bank for meeting its debt obligations - HELD THAT:- We are of the view that the order of denial of permission dated 30.12.2019 based....... + More

Transaction entered into by a foreign citizen of “Indian origin”, to deal with real estate in India on certain conditions - transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance - Mandation to get general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India - HELD THAT:- Foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, wh....... + More

Offence under FEMA - Review Petition - Correction of clerical errors - respondent Sakunthala had received payment unauthorisedly in her residential premises - respondent Sakunthala that her husband Muthupal Chettiar was a partner in Kumaran and Co in Malaysia - The Appellate Board had found that there was a accidental slip and held in paragraph No.7 that ''After giving careful thought to the contentions of the parties, I find this to be a fit case where benefit of doubt should be given to the appellant at S.No.1 and 2 and therefore, hold that the charge against her have not been established'' - HELD THAT:- Appellate Board upon satisfying that the accidental slip had occurred in the order attributable to an over-sight that the non-receipt of ₹ 75,000/- by the appellant at S.No.2 in the order conflicting with the concl....... + More

Offence under COFEPOSA ACT - detention order - respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials/ documents therefrom but petitioner did not co-operate in the opening/ unlocking of his mobile phone instrument - HELD THAT:- As timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February, 2019 was not found sufficient to justify the petitioner’s detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority, therefore, continued with its efforts to conduct further investigation and, for that purpose, retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter d....... + More

CENVAT Credit - duty paying documents - denial of credit on the strength of invoices issued by its Head Office as ISD on the ground that the said input service credit was availed on the basis of photocopy of the certificate issued by the Banks in favour of Head Office (ISD) - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- There is no dispute about the receipt of services inasmuch as the appellant has duly received the services from Bank and that payment of the Banking charges for loan processing and upfront fee have been duly made since not disputed in the impugned orders. It is also seen that the order passed by the authorities below have travelled beyond the allegations made in the SCN. When no dispute was made by the adjudicating authority with regard to the photocopies of documents, the objecti....... + More

Levy of service tax - security services or not - collection of charges providing armed security guards to public sector banks / undertakings and government departments - HELD THAT:- The appellant is performing statutory duties and the amount so collected is being deposited in the government treasury. CBEC has issued a Circular No.89/7/2006-ST dated 18.12.2006 clarifying that wherever the charges collected by any sovereign public authority for carrying out any statutory function, the same is not liable to levy of service tax if following three conditions are satisfied: (a) Sovereign/public authorities perform duties which are in the nature of statutory and mandatory obligation to be fulfilled in accordance with the law. (b) The fee collected should be levied as per the provision of relevant law. (c) The amount collected is to be deposited ....... + More

Rejection of declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - It is submitted that the quantification was communicated to the petitioner for the first time only on September 4, 2019, which is after the cut-off date - whether the e-mail dated March 22, 2018, further correspondence of the respondents vide communication dated April 4, 2018, letter dated September 4, 2018 and the e-mail dated October 31, 2018 is an ‘intimation’ or ‘written communication’ for quantification to be eligible for the benefit of the Scheme? HELD THAT:- There is nothing reflected from the communications to indicate that duty demand was quantified. There are force in the submission of learned counsel for the respondents that the correspondence/mails referred to by the petitioner prior to the cut-off date are meant....... + More

Rejection of application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - the quantification made as per the Audit Report has been indicated as 04.12.2019, whereas the relevant date is 30.06.2019 - HELD THAT:- It comes out from SVLDRS, 2019 that as per Section 123(c) that tax dues would be the amount of duty payable under any of the indirect tax enactment which has been quantified on or before 30.06.2019. A perusal of Annexure-B would clearly indicate undisputedly that there has been quantification as per the Audit Report dated 04.06.2019. Said aspect has not been controverted by learned counsel appearing for the respondent Department. In light of the same, clearly the petitioner's case prima facie falls within the requirement of quantification before 30.06.2019 The respondent No.3 to reconsider the application of the petitioner in Form SVLDRS-1 at Annexure-E afresh - Petition disposed off.

SVLDRS - Quantification of value of tax in relation to settlement of service tax arrears - Sabka Vishwas (Legacy Dispute Resolution Scheme), 2019 - according to the petitioner, this amount has been unilaterally quantified by the Central Excise Department - HELD THAT:- The quantification of the demand under cover of its compilation of documents dated 12.08.2021 is not valid because, even according to the Department, a substantial portion of that demand was barred by limitation. That apart, the impugned order is clearly non-speaking and does not set out any alternate demand. This cannot be set right by way of counter or additional note - To quote the Hon'ble Supreme Court in the celebrated case of MOHINDER SINGH GILL & ANR. VERSUS THE CHIIEF ELECTION COMMISSIONER, NEW DELHI & ORS. [1977 (12) TMI 138 - SUPREME COURT], orders are ....... + More

Refund of CENVAT Credit - failure to furnish to furnish any evidence that they have recredited to their cenvat credit account - applicability of time limitation - claim filed for the present period July 2016 to September 2016 after a time lapse of 2 years and is barred - period April 2014 to June 2014 - HELD THAT:- In the subsequent refund claim, the appellant has maintained that the differential amount was recredited to the cenvat account vide general voucher No.611 dt. 30.09.2016. But it appears that the appellant has not supported its claim with any documentary evidence. In the impugned order, the Commissioner (Appeals) has therefore observed that the appellant had failed to furnish any evidence. The only way out is therefore for the appellant to establish its case before the adjudicating authority with duly supporting documents. The a....... + More

Levy of service tax - Business Support services - services to distributors/producers in the nature of infrastructure support services - revenue sharing arrangement - Circular dated 13.12.2011 - section 65(104c) of the Finance Act - HELD THAT:- It would be seen from the agreement that the SPE Films is a producer/distributor engaged in the business of production and distribution of films, while the appellant is an exhibitor engaged in the business of exhibition of films and owns/operates a chain of multiplex theatres under the brand name “Inox” - The distributor/producer had granted the exhibitor the non exclusive license to exploit the theatrical rights of a motion picture and each party was entitled to conduct its business in its absolute and sole discretion. It was further made clear in the Agreement that either of the party ....... + More

Refund of the pre-deposit - Conflict with transitional provisions or not - dispute for the period prior to 30.06.2017 (i.e. prior to GST regime) - HELD THAT:- Appreciating that order of Commissioner (Appeals)/(Audit) dated 9.3.2018 is in conflict with the transitional provisions, as contained in Section 142 of CGST Act, wherein it has been provided that on or after 1.7.2017, any adjustment regarding refund of the duty or liability on the assessee has to be adjusted in cash. The Adjudicating Authority directed to disburse refund of ₹ 41,94,304/- in cash. It is further held that the appellant/assessee is entitled to interest on the said amount from the date of reversal (03.11.2015) till the amount of refund in cash, @12% p.a., as held by the Hon’ble Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT]. Appeal allowed - decided in favor of appellant.

Levy of service tax - postal charges/courier charges - reimbursable expenses - period is from 12/2004 to 3/2009 - HELD THAT:- During the relevant period, reimbursable expenses were not includible in the taxable value for determining the tax liability. The amendment in this regard so as to include reimbursable expenses also in the gross amount came to be introduced only w.e.f. 14th May, 2015. The issue stands decided by the judgment of the Hon’ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Appeal allowed - decided in favor of appellant.

CENVAT Credit - providing of taxable as well as exempt service - exempted service/ job work - non-maintenance of separate record - Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- N/N. 214/86-CE (NT) though was effective from April 1996 has been amended extensively vide N/N. 49/2002 dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002. As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance. Therefore, this amendment of 2005 since has only fixed manufacturer liable to comply with Rule 6 of Cenvat Credit Rules, 2004, to my....... + More

Rejection of declaration for Tax Relief under the provisions of Sabka Vikas [Legacy Dispute Resolution) Scheme, 2019 - mistake apparent on record or sufficient reasons for review - misconception of fact or not - Whether this Court, in exercise of the jurisdiction under section 114 and Order XLVII Rule 1 of CPC, must review the order on the ground that the learned counsel for the petitioner in not arguing the grounds (now urged) has made a mistake apparent on record in misconstruing the facts, or such circumstances would constitute sufficient reasons for review? HELD THAT:- The provisions of Section 73(1B) of the Finance Act, 2019 or Section 121(r) of the Scheme substantiate the petitioner’s case that it’s liability was ‘quantified’ for the purposes of Tax Relief under Section 124(c) of the Scheme. Even otherwise, t....... + More

Refund of unutilized CENVAT Credit - rejection on the ground that the appellant did not debit the amount of refund claimed at the time of fling the refund claim, but have debited such amount subsequent to the filing of the refund claim but before adjudication - Rule 5 of Cenvat Credit Rules read with N/N. 27/2012-CE (NT) - HELD THAT:- The debit of the amount of refund claim in the cenvat credit account suo moto before the adjudication, is sufficient compliance Condition No.2(h) of the Notification No.27/2012-CE. Further relying on the ruling of the Hon’ble Supreme Court in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [2010 (11) TMI 13 - SUPREME COURT] it is further held that the Commissioner (Appeals) have mis-conceived and mis-directed himself by ignoring the ruling of the Hon’ble Supreme Court, which is both judicial ind....... + More

Dispute mitigation scheme by enactment of chapter VI in Finance Act, 2013 and notification of Service Tax Voluntary Compliance Encouragement Rules, 2013 - computation of liability undertaken by the competent authority on submission of their declaration dated 13th December 2013 was in error - incorrect disqualification attached to ‘substantially false’ declarations for denying the privileges of escapement from interest and penal detriments appended to non-payment/short-payment of tax liability - coverage of exclusion/exemption to ‘maintenance’ of lifts - HELD THAT:- The catena of decisions cited by Learned Counsel lead to a conclusion that are not in consonance with the findings of the adjudicating authority in the impugned order. Every authority empowered under Finance Act, 1994 is bound by, and required to adhere ....... + More

Levy of service tax - service to financial institutions in relation to selling of their loan products to their customers - taxability of commission as received by the appellant in terms of sub section 19 of 65 of Finance Act or not - imposition and quantum of penalty - HELD THAT:- The services being rendered by the appellant are defined under section 65(19) of Finance Act, 1994. When the provision is read with section 68 thereof, it becomes clear that service was taxable and the appellant was liable to pay the service tax. There has been a major change in Finance Act with effect from 01.07.2012 by virtue of negative list under section 66B of the Act was provided. It was held that the services which are not covered under the said list are taxable. Apparently, the services of DSA to Financial institute is not mentioned in the said negative ....... + More

SEZ units - refund of service tax paid on input services used in the authorized operations - rejection of claim on the ground that the refund claim is filed beyond the time-limit of one year from the date of payment of Service Tax - Chartered Accountant certificate not signed by the statutory auditor - services included in the specified list of services or not - original invoices have not been submitted - applicability of N/N. 09/2009-ST dated 03.03.2009, as amended vide N/N. 15/2009-ST dated 20.05.2009 superseded by N/N. 17/2011-ST dated 01.03.2011. Rejection on the ground of time limitation - HELD THAT:- It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents - It can be seen from th....... + More

Refund of service tax paid - Export of services or not - intermediary - services provided by the appellant to its parent company in Hong Kong - Period Oct 2015 to March 2016 and April 2016 to Sept 2016 - HELD THAT:- Admittedly, the appellant have received the charges for their services in convertible foreign exchange. Rule 2(f) read with Rule 9 of Place of provision of Service Rules, 2012, clearly provides that ‘intermediary’ which means one who procure or an agent, does not include a person who provides the main service or supply of goods on his account. The appellant have provided the services to their holding company located India outside India, on their own account. Thus, the appellant have exported their services. The appellant is entitled to refund of the service tax paid under mistake. Further, the tax has been paid und....... + More

Classification of service - Franchise Service or not - one stop painting solution to the customers - respondent recovered certain income under the head Home Solutions Operations - Revenue was of the view that these services will fall under a category of franchisee service as defined under Section 65(105)(zze) of the Finance Act, 1994 - HELD THAT:- It is not settled law that unless and until representational rights have been actually transferred to the franchisee, the service tax could not have been levied under the category of franchisee services. The terms of the agreement clearly provide that home solution service provider is barred from making any statement on behalf of the company or in any manner how to represent the respondent. When there is a specific clause in the agreement which bars the home solution service provider from repres....... + More

Principles of natural justice - seeking directions to the Respondent No. '4' to give an opportunity of hearing to the Petitioner to present its case in relation to the Second Declaration - HELD THAT:- The Respondent vide its letter dated 08th August, 2019 had pointed out that, even according to the Petitioner’s own calculation, service tax liability was due and outstanding. The Petitioner was asked to deposit the balance service tax liability as calculated by the Petitioner vide the said letter. In fact, from the summons dated 20th May, 2019, it is apparent that the case was under investigation under Sections 70 and 174 of the CGST Act and the Petitioner has been asked to furnish a large number of documents including copies of challans showing its service tax liability deposited after the date of service - the said communica....... + More

Refund of service tax paid as pre-deposit - duty paid under protest - applicability of time limitation - HELD THAT:- Hon’ble High Court of judicature at Madras in one of its decisions in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] has considered an almost identical issue and, has, after considering decisions of the Hon’ble Apex Court as well as other High Courts, held that application under Section 11B for refund cannot be rejected on the ground that it is barred by limitation. On merits, the adjudicating authority has observed that the appellant’s claim was not supported by any documentary evidences. Further, also the Chartered Accountant certificate furnished by the appellant is given in 2019 ....... + More

Short payment of service tax - Business Auxiliary Services - Share Transfer Agent services - Registrar to an Issue services rendered by them - appropriation of amount paid towards the demand of tax - demand of tax on Intellectual Property services” received by them from foreign service providers - Manpower Recruitment or Supply agency services received by them from foreign service provider - demand of interest alongwith penalty - HELD THAT:- Undisputedly, the appellant is rendering the service of ‘Registrar to Issue’ services and ‘Share transfer agent’ services, both of which became chargeable to service tax w.e.f. 01 May 2006 and it has been paying service tax from that date. Reimbursable expenses recovered by the appellant from its clients - HELD THAT:- It has now been settled by the Supreme Court in UNION ....... + More

Manufacture - whether the activity of metalizing undertaken by the assessee amounts to manufacture or not? - HELD THAT:- There are no reason to deviate from the finding of fact recorded by the Tribunal, which is consistent with the record of the case. The conclusion reached is inevitable - there is no merits in this appeal and the same is dismissed.

Rejection of application for settlement of disputes under the Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - excisable goods - supplies made as against international competitive bidding to power projects, under exemption - Department adopted the view that the commodity supplied, being lubricant, was only used as a coolant/lubricating agent and hence did not entitle the petitioner to the exemption sought - HELD THAT:- The incidence of duty must not be looked at a mechanical event but a constructive one, that contains all incidents of a taxable event. Thus, to attract levy of duty, a practical point of view must also be called into play to determine whether the goods are marketable or capable of being marketed. Though in that case the Court was concerned with whether the commodity in question was capable of being marketed as a dist....... + More

Activity amounting to manufacture or not - fixing of a lens in a spectacle frame - Remission of Excise Duty - activity of fixing of prescription lenses in spectacle frames - HELD THAT:- A perusal of the show cause notice reveals that the activity carried out in the show rooms was the manufacture and clearance of spectacles carrying 'Titan Eye+’ Brand. Though adverse inferences are sought to be drawn by the respondents on other grounds as well, such as violation of conditions contained in Notification 8/2003-CE dated 01.03.2003, this point has not been argued and both the parties before me have confined the scope of the arguments to (i) whether the respondents were right in law in having issued the impugned show cause notices inspite of binding judicial precedents to the opposite effect and (ii) whether the assembly of prescripti....... + More

Rebate Claim - rejection on the ground that since the goods exported vide the said ARE-I were reimported by the Applicants, it implied that the export was not completed - whether the rebate of Central Excise duty paid in respect of exported goods would be admissible when the goods were exported before advent of CGST regime but rebate claimed after it? - Rule 18 of Central Excise Rules, 2002 - HELD THAT:- As the goods were reimported and a credit note was issued against the proceeds realised, the lower authorities have taken a view that the export was not complete. As per Section 2(18) of the Customs Act, 1962, “ ‘export’ with its grammatical variations and cognate expressions, means taking out of India to a place outside India”. In the present case, the goods were taken out of India and reached buyer’s place ....... + More

Vires of Rule 17(2) of the Pan Masala Rules as ultra vires to the provisions of Section 3A of the Central Excise Act - HELD THAT:- It is true that, the High Court has observed that, in the facts of the case, challenge to the vires of Rule 17(2) of the Pan Masala Rules is rather without substance, however, the High Court has not at all addressed the issue on vires on merits in detail. The question of vires cannot be decided by the Appellate Authority/Tribunal in an appeal against the order-in-original. Under the circumstances, the High Court has not at all addressed on merits on the question with respect to vires of Rule 17(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, the impugned order passed by the High Court is set aside and matter remanded to the High Court for its fresh decision - appeal allowed by way of remand.

Maintainability of appeal - appropriate forum - different Commissionerate was being established and in that process inefficiency occurred - remedy to file an appeal within a particular time limit - HELD THAT:- We consider this hardly a proper justification except that it is a result of inefficiency of the working of the Department and lack of knowledge of legal remedy. Since some similar matters are stated to be pending consideration, we are inclined to condone the delay, subject to deposit of ₹ 10,000/- as costs in each of the special leave petitions with the Supreme Court Group ‘C’ (Non-Clerical Employees Welfare Association) within three weeks. The applications for condonation of delay are accordingly allowed.

Process amounting to manufacture or not - duty paid cigarettes - affixing brand name, repacked in new pack - non-payment of duty on removal of competitor’s cigarettes - period from 2004-05 to 2008-09 - HELD THAT:- The term “manufacture” has been defined under Section 2(f) inter alia, to include any process, incidental or ancillary to the completion of a manufactured product. In this case, the competitor’s cigarettes procured by the appellant were masked, covering the manufacturer’s brand name, repacked in new pack by putting only a code number for testing purpose to select panel of the smokers. The product emerged after carrying out the activity of masking, putting code number etc. for identification, remained cigarettes only, which were procured by the appellant on payment of appropriate Central Excise duty........ + More

Demand u/s 11D - Collection of amount in the name of duty - Cash recovery of Money Credit Scheme - applicability of Section 11D of the Central Excise Act, 1944 - HELD THAT:- Much emphasis was placed on the last sentence appearing in the said circular, which predicates that the manufacturer is utilized to pay duty on any finished excisable product and which duty is collected from the buyer. This expression, though, wide enough but cannot travel beyond Section 11D of the Act and in reference to the Board Circular Bearing No. 216/50/96-CS, dated 4-6-1996, referred to in the stated circular dated 7-8-2002. Besides this, nothing more is required to be said. The claim set up in the Writ Petition, therefore, has been rightly negated by the High Court. SLP disposed off.

Violation of principles of natural justice - Scope of SCN - benefit of deemed credit to the rerollers whose value of clearances have crossed ₹ 75 lakhs in a particular financial year - whatever interpretation was put on Notification No. 1/93 would affect the availment of the benefit of the deemed credit order No.TS/36/94TRU dated 1.3.1994 or not - HELD THAT:- The questions raised in this appeal are identical to what have been decided in case of VINUBHAI STEEL CO. PVT. LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (3) TMI 746 - GUJARAT HIGH COURT] where it was held that to the extent M/s Sonthalia Steel Re-Rolling Mills had availed the benefit of the order dated 1st March, 1994 after it came to be rescinded with effect from 1st April, 1995, it was not entitled to such benefit. Questions are answered in favour of the assessee - appeal allowed.

Principles of natural justice - legality and validity of ex-parte order - levy of personal penalty on the petitioner without service of show cause notice and without service of notices of personal hearing - HELD THAT:- From the reply of the respondent department, it can be deduced unequivocally that the show cause notice and the personal hearing notices have not been served upon the petitioner. It has a reference of the first show cause notice served upon the company and therefore, it assumed that the show cause notice and the personal hearing notices have been served upon the present petitioner also. This stand on the part of the respondent of not having known the changed address of petitioner on his having failed to put to the notice of department is wholly unacceptable. Failure to send the show cause notice and the notices of personal ....... + More

Valuation - inclusion of value of software in the assessable value during clearances of telecom equipment or not - want of necessary evidences - period involved is from March 2005 to January 2006 - HELD THAT:- The Commissioner (Appeals) has not gone into the details as to whether the software is only an operational / application software, as contended by the respondent, whether the software is an integral part of the telecom equipment/hardware without which the telecom equipment cannot function. In paragraph 4.2 of the impugned order, it is merely stated that “the telecom equipment can function without the usage of said Network Management Software”. This finding is not seen supported by discussion of necessary evidence. If the software is operational / application software, the decision in COMMISSIONER OF CENTRAL EXCISE, PONDI....... + More

Delay in sanction of interest on interest - Applicability of time limitation - whether the delay in sanction of interest on interest beyond the three months, comes within the purview of section 11BB? - HELD THAT:- It is apparent that the issue has been decided by Hon’ble High Court of Gujarat in favour of the assessee. The issue is no more res integra and stand settled by the Apex Court in the case of Ranbaxy Laboratories Ltd. [2011 (10) TMI 16 - SUPREME COURT]. Perusal of the decision makes it abundantly clear that what is payable under section 11AB is the interest on the expiry of period of three months from the date of receipt of application for the refund the amount which is still not refunded. The sanction of refund of interest on the interest amount has been allowed for this decision only for the reason that the demand has cau....... + More

Refund claim against reversal of CENVAT Credit - input services or not - sales commission - refund rejected on the ground that sales commission is not input service and also on the ground that the appellant have admittedly reversed the amount without under protest - HELD THAT:- It is found that the reversal was made on the objection of the audit party. Though the reversal was not made under protest but the appellant has right to claim refund within one year as mandated under section 11B of Central Excise Act,1944., therefore only on the ground that the appellant has not filed under protest letter while reversing the credit refund cannot be rejected on this ground. As regard the merit that whether the sales commission is admissible input service or otherwise the issue is subjudice before the Hon’ble High Court of Gujarat in the case ....... + More

CENVAT Credit - Job-work - exempted service - credit claimed on taxable as well as exempt goods - non-maintenance of separate records - demand of an amount equal to 6% of the value of exempted service - Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- Notification No. 214/86-CE (NT) though was effective from April 1996 has been amended extensively vide Notification No. 49/2002 dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002. As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance. Therefore, this amendment of 2005 si....... + More

CENVAT Credit - Additional duty of Customs (SAD) - credit as per the amount shown in the ‘Bill of Entry, correct or not - excess receipt of raw material -volatile in nature - amount of CVD in the bill of entry, is a lower amount - extended period of limitation - HELD THAT:- The appellant is registered with the Department and have maintained proper books of accounts and registers. The issue involved herein is wholly interpretational in nature. Further, the show cause notice is also erroneous, as revenue have sought to recover an amount of ₹ 1,04, 890 + ₹ 7,18,818/- which are been finally dropped by the court below. Further, this Tribunal found that the demand of ₹ 25,705/- is not sustainable and the same have been raised by misconception, as regards treatment of normal loss. Taking of lesser credit due to normal los....... + More

CENVAT Credit - availment of wrong cenvat credit of the same amount twice - returned goods - HELD THAT:- The appellant have not taken wrong credit but rather have rectified the wrong debit made at the time of sales return, instead of taking credit, and accordingly the two entries of cenvat credit made by them on 31.12.2016 are in consonance and the accepted accounting principles. Hence, the impugned order is unsustainable and against the provisions of law. Appeal allowed - decided in favor of appellant.

Maintainability of appeal - being two units of the appellants involved in this case, whether only one appeal is sufficient or one more appeal is required to be filed? - interpretation of various notifications and availability of exemption - HELD THAT:- This issue was not disputed by the revenue in earlier two round of appeals, which attained finality, therefore at this stage the objection of the revenue is not tenable. Moreover, even though there are two units i.e. Twisting unit and other is Dyeing unit but both the units belongs to one company, hence only one consolidated appeal is sufficient, particularly when Order-In-Original is one common order in respect of both the units. Hence, the revenue’s objection on this point is not sustained. Exemption under N/N. 5/1998-CE, N/N. 5/1999-CE, N/N. 6/2000-CE, N/N. 3/2001-CE, N/N. 6/2002-C....... + More

Valuation - Nature of amount received - Recovery of Central excise duty with interest and penalty - amount received by the appellant from M/s. Honda Siel Car India Ltd. [Honda India], for the loss suffered by the appellant on account of the cancellation of the contract for supply of auto parts used in the manufacture of vehicles - HELD THAT:- Section 4(1) of the Excise Act deals with valuation of excisable goods for purposes of charging of duty of excise. It provides that where the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall be, if the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value. Transaction value has been defined under section 4(1)(d) of the Excise Act to mean the p....... + More

Refund - Applicability of doctrine of unjust enrichment - provisional assessments - applicability of N/N. 45/99 CE dated 25.06.1999 - refund of duty governed by the provisions contained in proviso [d] & [e] of Section 11B [2] of the Central Excise Act, 1944 or not - presumption contained in Section 12B of the Central Excise Act, 1944 applies or not in case of Provisional Assessments also - HELD THAT:- Rule 9B[5] has to be read with the proviso which provides that if an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under Subsection [2] of Section 11B of the Act as inserted with effect from 25.07.1999. Rule 7[6] read with the proviso provides that the duty of excise paid by the manufacturer, if he had not passed an incidence of such duty to any other person be pa....... + More

Clandestine Removal - threshold limit of SSI Exemption - third party evidences reliable or not - cross-examination of witnesses - entire case was made out mainly on the basis of diaries which is marked as A/2 &A/3, said to have been recovered from the appellant’s factory - Department’s case is that the appellant have clandestinely removed the goods consequently the value of SSI exemption limit has exceeded and appellant is not entitle for the SSI exemption - penalty - HELD THAT:- The entries in the diaries include the entries of removal in respect of which the invoices were issued. The investigation agency have also recovered certain documents from the transporters, various statements were recorded mainly of Mr. Ashuram, Director of the appellant company and also of transporters and dealers, documents from weighbridge also....... + More

Maintainability of petition - availability of alternative remedy of appeal - Revisional/re-assessment orders - escapement of turnover - wrong availment of Input Tax Credit - reasonable opportunity to show cause provided or not - HELD THAT:- This Court is clear in its mind that personal hearing is not statutorily imperative for a legal drill i.e., assessment of escaped turnover/wrong availment of 'Input Tax Credit' (ITC). This is owing to the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched. The expression 'a reasonable opportunity to show cause against such order' occurring in the proviso has been explained by this Court in a detailed and elaborate order in STATE BANK OF INDIA OFFICER'S ASSOCIATION (CC) - SBIOA VERSUS THE ASSISTANT COMMISSIONER (ST) [2019 (9) TMI 698 - ....... + More

Assessment of escaped turnover - wrong availment of Input Tax Credit (ITC) - Section 27 of TNVAT Act - HELD THAT:- There is a statutory appeal provided under TNVAT Act as against the impugned order and this statutory appeal is available to writ petitioner under Section 51 of TNVAT Act. Therefore, there is an alternate remedy. There is nothing to demonstrate that alternate remedy is not efficacious. The second respondent has applied his mind and made the impugned order (on a demurer, erroneous may be as contended by writ petitioner) and therefore, it does not warrant interference in exercise of powers under Article 226 of Constitution of India on this facet also. As I am taking the view that this case does not warrant interference under Article 226 of Constitution of India, in the light of alternate remedy, I refrain from expressing any op....... + More

Valuation - permissible deduction for the purpose of computing the respondent’s taxable turnover or not - bank charges, guesthouse charges, fuel charges, computer expenses, and entertainment charges incurred by the respondent - expenses relatable to labour and other like charges or not - Rule 3 (2) (l) of the KVAT Rules? - HELD THAT:- Insofar as deductions in the nature of interest charged by the client towards postage, telephone expenses, etc. incurred by the dealer and also vehicles used exclusively used by the contractor in the execution of the works contract are concerned, a co-ordinate Bench of this Court in the case of Larsen & Toubro v. State of Karnataka [2009 (9) TMI 933 - KARNATAKA HIGH COURT] while considering the provisions under the Karnataka Sales Tax Act, 1957 has held that the said charges undoubtedly come within....... + More

Rejection of input tax credit - Fictitious dealers - Bogus supplier - protective assessment under Section 38[5] of the Act - levy of penalty - HELD THAT:- The Enforcement Officer has submitted a report to the Assessing Authority that M/s. Master Trading Company did not exist in the registered address. On further enquiry from the owner/landlord of the building, it was found that the said place was not rented to M/s. Masters Trading Company. Further, the Enforcement Officer has visited the business premises as well as the residential address declared and found that no such dealer existed in the registered place of business and in the residential address shown in the VAT-1 application for registration, for the last two years. In Salem Steel Trading Company supra, the Co-ordinate Bench of this Court has held that the claim of input tax credit....... + More

Interpretation of statute - Section 8 (5) of the CST Act - inter-state sale - C-Form - changes brought about by the amending Act of 2002 governs only Section 8 (5)(a) and not Section 8 (5)(b) of the CST Act is right and justifiable? - Whether the Division Bench of the Hon’ble High Court of Karnataka was justified in not considering the Notification No.FD 199 CSL 2002(4) dated 31.5.2002 in the right prospect, though the same was upheld by the Division Bench of the Karnataka High Court in W.A. No.2417 of 2007 dated 02.04.2009 in the case of M/s Volvo India Pvt. Ltd.? - HELD THAT:- Giving effect to the industrial policy 1996-2001, Government of Karnataka issued a notification bearing No.FD:32 CSL 96(II) dated 15.11.1996 under Section 19-C of the KST Act providing for tax exemptions or deferrals. Similarly, a corresponding notification ....... + More

Reversal of input tax credit (ITC) - alternate remedy to file an appeal - lone pivotal contention of the learned counsel for writ petitioner is that reversal of ITC should be in excess of 5% of tax or in other words, upto 5%, there cannot be reversal - HELD THAT:- In the instant case, as would be evident from the trajectory which lead to the impugned order has been captured, it is clear that more than reasonable i.e., adequate and ample opportunity has been given to the writ petitioner for showing cause against the impugned order. So there can be no grievance in this regard. Though there can be no disputation or disagreement on the aforesaid rule, what is of relevance is Honourable Supreme Court in a catena and series of judgments i.e., a long line of case laws commencing from ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DU....... + More

Grant of exemption on second sale - sale of food and drinks to the canteen as claimed by the assessee - whether the sale will fall under Entry 6(a) of the Fifth Schedule to the KST Act - reimbursement of ESI, PF, Bonus is taxable under the KST Act or not - competency of the Advance Ruling Authority in issuing the clarification when the matter was pending before the Revisional Authority - HELD THAT:- It is ex-facie apparent that the Tribunal having given a finding on the sales of food and drinks made by the assessee to the canteens would not fall under Entry 6(a) of Fifth Schedule, remanded the matter to the revisional authority only to examine the exemption of second sales with respect to bakery products sold by the assessee. The review petition was filed by the assessee against the order of the Tribunal which also came to be dismissed an....... + More

Validity of Tax Recovery Notice (TRN) - demand for Petrol and Diesel suppression and cloth material suppression - levy of penalty u/s 43(2) of the OVAT Act - HELD THAT:- The fact of the matter is that the assessment order has remained unchallenged by the Petitioner, even assuming that it was without jurisdiction. Having not availed the remedy of an appeal, the Petitioner cannot question the assessment order at this stage i.e. after receiving the TRN. Consequently, the Court is not prepared to entertain at this stage a challenge to the assessment order or to the consequent TRN. Petition dismissed.

Input tax credit of VAT paid on the Mining Tippers (and its accessories) which were used in the activity of manufacture or production of iron ore - Restoration of reassessment order passed by the prescribed authority - tax periods July, 2009 to March, 2010 - Section 66(1) of the Karnataka Value Added Tax Act, 2003 - HELD THAT:- In the case of Suma Oil Agencies [2014 (4) TMI 545 - KARNATAKA HIGH COURT], the assessee had purchased a canter fitted with the tanker for the transportation of edible oil which is taxable goods from one place to another. Even in such context, the input tax credit was extended to the assessee in respect of the purchase of the said canter fitted with tanker. As such, the said judgment would be squarely applicable to the facts of the present case - Moreover, in the light of the judgment of the Hon’ble Apex Cour....... + More

Reversal of input tax credit - no “C” declaration form made available or filed by the petitioner for part of value - section 19(2)(5) read with section 19(5)(c) of the Tamil Nadu value Added Tax Act, 2006 and Rule 10(9)(a) of Tamil Nadu Value Added Tax Rules, 2007 - HELD THAT:- In the judgment in M/S. EVEREST INDUSTRIES LIMITED VERSUS THE STATE OF TAMIL NADU, THE DEPUTY COMMISSIONER (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT], the learned Judge has exactly confronted with the similar issue, where after having exhaustive discussion on the issue, the learned Judge has concluded that, if the manufacturer, who claimed that they have purchased inputs, which are referred to in first schedule of 2006 Act, in respect of them, if tax have been paid, and the tax suffered inputs have been used in manufacturing or processing of good....... + More

Levy of KST Act and KVAT Act on Liquor - right for disallowing the ITC claimed by the petitioner - tax can be levied on the entire sales turnover or not - eligibility for deduction under 3[2][f] of the KVAT Rules - levy of KVAT on the Value Addition or on the entire sales turnover - eligibility for tax deduction as per Rule-3 of the KST Rules - levy of entire sale value/total turnover and not on the value addition/taxable turnover - validity of conformation of order of the appellate authority and audit authority - violation of principles of natural justice - applicability of notification published in the Departmental Website - HELD THAT:- Rule 3 of the Rules deals with determination of turnover. As per Rule 3(1), the total turnover of a dealer has to be determined as set out in clauses (a) to (g) with explanations thereof. Sub-Rule (2) of....... + More

Deemed assessment - assessment of escaped turnover - Section 27 of TNVAT Act - HELD THAT:- The order made under Section 27 of TNVAT Act has been called in question inter alia on the ground that Narasus principle being ratio in NARASUS ROLLER FLOUR MILLS VERSUS THE COMMERCIAL TAX OFFICER [2015 (4) TMI 361 - MADRAS HIGH COURT] which inturn was made by following an earlier Hon'ble Division Bench judgment in Madras Granites Private Limited Vs. CTO., [2002 (10) TMI 767 - MADRAS HIGH COURT] has been given a go by; that it is to be noted that this principle is to the effect that the Assessing Authority exercising best judgment assessment qua alleged escaped assessment should not go solely / blindly by the report of the Enforcement Wing officials and should independently make an assessment. On the short point of Madras Granite and Narasus pri....... + More

Scope of SCN and the order passed - petitioner has a case that the notice issued, which is produced as Ext.P3, was under Section 25(1) of the KVAT Act. However, when the order was passed, it is seen to be passed under Section 25(A) of the KVAT Act - opportunity of hearing provided to the petitioner or not - HELD THAT:- It is found from Ext.P5 that there has been undue haste in issuing the said order, which, in the circumstances of the case, is not warranted. In a case, where tax liability imposed on the petitioner is large as can be seen from Ext.P5, strict compliance of law is essential. Rule of law demands that a proper opportunity of hearing ought to be given before passing orders of assessment. Fair submission of the Learned Government Pleader, is placed on record, who submitted that the assessment order does not reflect such an oppor....... + More

Warrant of arrest - willful defaulter - Recovery of arrears of sales tax dues - allegation is that the defaulter is willfully withholding payment of the arrears - dishonestly transferring the father's property to the name of his minor son - HELD THAT:- The 'will' by which the property has been bequeathed to the defaulter's son by the defaulter's father is produced as Ext. P6 and from a perusal of the same it can be seen that the property bequeathed is the balance extent available with Sri Johny from out of the property obtained by him as B schedule in the partition deed No. 1080/1965 of Oorakam SRO and purchase certificate No. 1480/1977 issued by the Land Tribunal, Thrissur. Therefore, the finding in Ext. P7 that the property involved is hereditarily acquired by Sri. Johny over which the defaulter has right cannot be s....... + More

Seeking restraint on respondent-State authorities from adopting coercive measures against the property purchased by the petitioner company - preferential rights of secured creditors - charge created over the ‘property-in- dispute’ - plea of alternative remedy - HELD THAT:- Undisputedly, the State Bank of India is a ‘banking company’ defined under the Banking Act. Therefore, it became open to it to raise a plea based on Section 34(2) of the Act. A plain reading of that provision brings out the existence of a non obstante clause created by the legislature. Thus, nothing contained in Section 34(1) of the Act, 1948 shall apply to (i) a charge created in favour of the State Bank of India or (ii) transfer made ‘in favour’ of the State Bank of India. In face of the charge (over the ‘property-in-dispute&r....... + More

Principles of natural justice - Assessment of escaped turnover - wrong availment of Input Tax Credit - reasonable opportunity to show cause given or not - Section 27 of TNVAT Act - HELD THAT:- Interestingly and intriguingly, the provision under which the impugned order has been made i.e., Section 27 of TNVAT Act talks about 'Best of its Judgment' for making re-assessment. This is all the more good ground to say that reasons even should be given and in the light of proviso to sub-sections(1) and (2) of Section 27 of TNVAT Act, it is imperative that the cause shown by writ petitioner is considered for re- assessment/revision by adopting Best Judgment Methodology. It follows as a sequitur that the reasons would therefore form the soul of a revision/re-assessment order and how the objections were considered should be set out and such ....... + More

Recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act - Attachment of personal property - outstanding dues of the Company - section 135D of the Bombay Land Revenue Code - whether for the purpose of recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act against Gujarat against a private limited company, the personal property belonging to the Managing Director of such company can be attached? - HELD THAT:- The Co-ordinate Bench while considering the similar issue, relying upon the decision of Division Bench of this Court rendered in Special Civil Application No.243 of 1991 with Special Civil Application No.3103 of 1991 and Special Civil Application No.7578 of 1991 in the case of Mr.Choksi Vs. State of Gujarat, [2012 (3) TMI 392 - GUJARAT HIGH COURT] has allowed the sai....... + More

Revision/reassessment order - escaped turnover / wrong availment of 'Input Tax Credit' (ITC) - Hans Chap Khaini - exempt from tax or not - Alternate remedy rule - HELD THAT:- The matter turns on facts and Hans Chap Khaini is only a brand and it is not a product. Whether the product would qualify as 'Tobacco' is a matter which turns on facts and in the considered view of this Court, the reasoned impugned order does consider the principles qua earlier orders and the same stand distinguished. Alternate remedy rule - HELD THAT:- In the case on hand, there is no disputation or disagreement that the impugned order is appealable. In other words, statutory appeal qua impugned order is available to the writ petitioner, which will be under Section 51 of TNVAT Act - the law is well settled that it is not an absolute rule and it is a ....... + More

Refusal to direct stay of collection of remainder of disputed tax - jurisdiction to entertain the stay application pending hearing of appeal before the Tribunal - Section 33 of the Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- A plain reading of Section 33(6) of the Act would show that such power would be exercised by the 2nd respondent only when an appeal is preferred against an order or proceedings recorded by the Deputy Commissioner under Section 21 or 32 of the Act and not otherwise - In the present case, a second appeal has been preferred against an order passed by the first appellate authority under Section 31 of the Act and therefore, the 2nd respondent did not have jurisdiction to entertain an application for stay of collection of tax pending such appeal. When a litigant has a right to prefer a second appeal against an or....... + More

Quantum of pre-deposit - Seeking admission of Second Appeal and stay against the recovery of dues - Exemption for high seas sale transaction - HELD THAT:- The demand of the pre-deposit is to the tune of 20% of the tax liability for admission of the appeal vide impugned order dated 11.02.2020. As could be noticed from the pleadings for the other assessment year, the petitioner has been able to duly furnish the evidence for high seas sale transactions, which have been accepted also by the different assessment orders. Considering the justifiable grounds and the bona fide nature of the transaction, the First Appellate Authority when has already ordered the reverification of the document, which had not been complied with by the Assessing Authority, the VAT Tribunal could have considered this aspect, which instead has ordered the 20% of the pre....... + More

Difference between Fee and Tax - Refund of water and sewerage taxes levied and collected under the provisions of the Uttar Pradesh Water Supply and Sewerage Act 1975 (UP Water Supply and Sewerage Act) - legislative competence of State Legislature to levy the tax under the provisions of Section 52(1)(a) - Applicability of judgement in the two judge Bench of this Court in Union of India v. State of U.P. [2007 (11) TMI 701 - SUPREME COURT] - HELD THAT:- A basic principle of tax jurisprudence is that the levy of a tax cannot be conflated with its measure. In the context of Section 52, the levy by the Jal Sansthan is “on premises situated within its area” meaning the area within which the Jal Sansthan exercises its jurisdiction and powers. The levy is on premises. The expression ‘premises” is defined in Section 2(18) to....... + More

Seeking grant of Bail - trading in crypto currency - collection of huge amounts from gullible investors - assured returns were not given to the investors - Breach of Trust - HELD THAT:- Without any observations on the merits or demerits of the trial that would take place, in as much as, the charge sheet has already been filed, the factum that the applicant indulged in the trade of crypto currency despite public notices dated 24.12.2013, 01.02.2017, 05.12.2017 issued by the RBI as also issued on 06.04.2018 cautioning users/holders and traders of virtual currency including bit coins regarding various risks associated in dealing with such virtual currencies with regulated entities already providing such services having been called upon to exit the relationship within three months from the date of the circular dated 06.04.2018 bearing DBR.No........ + More

Seeking grant of Bail - contention is that the mutual fund units in question were voluntarily transferred by OCL and DCEL to three companies of the petitioner to utilize the dead assets of the company and offer the same as collateral, with a view to avail margin for trading - whether the petitioner, who is alleged of committing an offence involving about ₹ 344 Crores, is entitled to bail or not? - HELD THAT:- A perusal of the judgment in SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT] indicates that the magnitude of the offence cannot be the only criterion for denying bail. The object of bail is to secure the presence of the accused at the Trial. The object of bail is neither punitive nor preventative and the person who has not been convicted should be held in custody pending Trial only to ensure his attendance at Tria....... + More

Rejection of representation re-fixing/revisiting the seniority list by placing Direct recruit Assistant Commissioners en-block over and above the promotees Assistant Commissioners - whether inter-se seniority of the petitioners and private respondents is to be determined from the date of their substantive appointment in accordance with Rule 8 (1) or it is to be determined in accordance with Sub-Rule 3 of Rule 8 of the Seniority Rules 1991? HELD THAT:- The issue regarding what is the import and purport of phrase ‘one selection’ occurring in sub-rule (3) has to be dealt with first before proceeding further in the matter. Ordinarily, appointments through direct recruit and promotion to a post are not made by one selection inasmuch as direct recruitment to the post of Assistant Commissioner in the present case is made by the Uttar....... + More

Non-grant of sanctioned CC Facility - Breach of trust - Commitment of fraud - prosecution under vicarious liability - commission of offences punishable under Section 409, 420 RPC - whether a Chairman/Director of a company, or say a bank, can be vicariously liable for a criminal offence attributed to the company/bank? - HELD THAT:- The issue whether a Chairman/Director of a company, or say a bank, can be vicariously liable for a criminal offence attributed to the company/bank, came up for consideration before the Supreme Court in Sunil Bharti Mittal vs. CBI [2015 (9) TMI 1339 - SUPREME COURT], where it was held that The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise an....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceabe debt or not - acquittal of respondent/accused of the charge under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption - HELD THAT:- It is quite clear that presumption under Section 139 of the Act, 1881 covers legally enforceable debt or liability, in other words the law of aforesaid presumption as it stands now after the judgment of Supreme Court in the matter of Rangappa [2010 (5) TMI 391 - SUPREME COURT] is that once the issuance of the cheque is admitted or proved, the trial Court is duty bound to raise presumption that the dishonoured cheque placed before it was indeed issued in discharge of legally enforceable debt or liability of the amount mentioned therein, although the presumption in this regard is a rebuttable one. Looking to the provision....... + More

Offence punishable under Section 55(a) of Kerala Abkari Act - only evidence against the accused No.1 is of an alleged confession made by the accused No.2 - HELD THAT:- It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony o....... + More

Dishonor of Cheques - legally enforceable debt or not - Rebuttal of presumption - whether complainant alone is having the duty to prove that the cheques were issued for discharging the liability? - HELD THAT:- Primarily, in respect of filing of 4 cases by the complainant, he deposed before the trial Court that, all the cases were filed within the time stipulated under Section 138 of the Negotiable Instruments Act. Further, it is not in dispute on the side of the accused that the complainant has filed four cases after violating the limitations narrated in Section 138 of the Negotiable Instruments Act. Therefore, it was concluded that all the cases were filed within the limitation as contemplated under Section 138 of the Negotiable Instruments Act - It is another thing that the accused has not disputed the signature found in the cheques in ....... + More

Dishonor of Cheque - insufficiency of funds - cheque issued by the petitioner or not - role played in the transaction with the defacto-complainant/respondent - offence punishable under Section 138 of the Negotiable Instrument Act - HELD THAT:- In the disposition of the dispute, the arbitrators shall be governed by the express terms of this agreement and otherwise by the laws of the State of (specify) which shall be govern the interpretation of the Agreement. The decision of the arbitrators shall be final and conclusive on the parties and shall be a bar to any suit, action or proceeding instituted in any court or before any administrative tribunal. Notwithstanding the foregoing, judgment on any award by the arbitrators may be entered in any court of competent jurisdiction. This arbitration provision shall survive any expiration or terminat....... + More

Interpretation of statute - Assignee of the decree holder in terms of Order XXI Rule 16 of the Code of Civil Procedure, 1908 - scope of Section 146 of the CPC read with Section 2(1)(g) of the Arbitration &Conciliation Act, 1996 - significant aspect is the addition of the explanation to Order XXI Rule 16 of the CPC, which was added pursuant to the recommendation made by the Law Commission of India in its 54th Report on the CPC in 1973, which in turn was a sequitur to the conflicting views of the High Courts on the matter in issue. HELD THAT:- It is an admitted position that the explanation was added to Order XXI Rule 16 which did not exist earlier, pursuant to the recommendations made by the Law Commission of India in its 54th Report on the Code of Civil Procedure, 1908. The Explanation was so added due to conflicting High Courts&rsquo....... + More

Dishonor of Cheque - legally enforceable debt or not - without giving an opportunity to the petitioners the ld. Court below has closed the cross-examination - Principles of natural justice - power to recall the witnesses under section 311 Cr.P.C - HELD THAT:- The ld. Court below, in the impugned order dated 03.05.2018, has noted that the case was posted for cross-examination of P.W.1 on 30.05.2017, and since then ample opportunities were afforded to the petitioners to complete cross-examination of P.W.1. But, the accused persons could not avail the opportunity. And on that day, i.e. 03.05.2018, also the petitioners have failed to cross-examine the P.W.1. Instead, on that day neither the accused nor his counsel remained present in the court, though the ld. Counsel has filed hazira in the court. Then being left with no option the ld. Court ....... + More

Vires of Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 - violation of principles of separation of powers and independence of judiciary - stipulation of a minimum age limit of 50 years for appointment - HELD THAT:- The challenge to the first proviso to Section 184, which prescribes the age qualification, has to be seen from several angles. First, the underlying parent statutes which created the Tribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion for selection of candidates as members, any minimum age. The prescription of 50 years as a minimum eligibility criterion, in the opinion of this Court, is without a....... + More

Smuggling - Methaqualone - contraband item - evidence of any independent witness or not - conscious possession of the contraband item or not - framing a charge against the accused - Section 50 of the NDPS Act - HELD THAT:- Before analyzing the oral evidence adduced by the appellant, it is apparent that the prosecution case itself stands vitiated on account of non compliance of section 42 (2) and section 50 of the NDPS Act - It is equally important to note that except officials of the NCB, there is no evidence of any independent witness except the owner of the tempo, P.W.8-Ankush Bhoite, who turned hostile. The appellant emphasized on the testimony of it’s witnesses coupled with statements of the accused recorded by them. There is no evidence in the complaint that the copy of the information received by the officer was forwarded to t....... + More

Dishonor of Cheque - insufficiency of funds - existence of debt or not - onus to prove - rebuttal of presumption of innocence - HELD THAT:- It is clear that Sita Ram Verma was not authorized as per the resolution of the Board of Directors' of the Company nor he was a Principal Officer of the Company and his title to maintain the present complaint was to be considered vis-à-vis. his capacity to depose in the Court of law. Though, this Court may proceed with the presumption that he was having authority to proceed with the complaint as he was working with the Company. Whether the onus which shifted on the complainant that the cheque was not issued for consideration and it was only a security amount has been discharged? - HELD THAT:- The answer is that onus was not discharged as the Company which is supposed to maintain the account....... + More

Dishonor of Cheque - insufficiency of funds - condition precedent for constituting an offence under Section 138 of N.I. Act has been satisfied or not - service of legal notice - HELD THAT:- From the case records, it appears that the prosecution had exhibited the cheques and also proved the postal receipt and successfully proved that the cheques were issued by the petitioner, which had bounced due to insufficient funds. Service of legal notice - HELD THAT:- Neither any date of dispatch of the legal notice has been mentioned in the evidence, nor the legal notice has been exhibited, much less, any evidence or finding regarding service of legal notice/deemed service of legal notice is on record. This court is of the considered view that mere bouncing of the cheque coupled with a further statement that legal notice was issued but in-spite of i....... + More

Dishonor of Cheque - discharge of existing liability - sufficient averments present or not - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In the present case, both A2 and A3 are partners of A1/Firm. When a cheque is issued for a particular transaction on behalf of the Partnership Firm, then both have a co-existing liability with respect to ensuring that the cheque is honoured. If the cheque is dishonoured and the prosecution is launched, then both have a co-existing liability to face such prosecution unless the Partnership Deed specifically excludes a particular partner or includes a partner as a sleeping partner or a minor partner only for the benefit of the Partnership Firm. In all other circumstances, both partners sink together or survive together. With respect to the averments made, the respondent had specificall....... + More

Dishonor of Cheque - direct contractual or business relationship or transaction necessitating issuance of a cheque or not - Section 138 of Negotiable Instruments Act - HELD THAT:- In the instant case, the petitioner had not issued the cheque from an account in her name. She had issued the cheque from the account in the name of V.N. Krishnaswamy Naidu College of Arts and Science for Women, Mettupalayam. That institution has not been made as a party. The constitution of said institution is not known, but, still the cheque had been instituted by the petitioner in her capacity as Correspondent/Secretary of that institution. She had not issued the cheque in her personal capacity. The petitioner had not issued the cheque. She had signed the cheque only in her capacity as Correspondent/Secretary of a named college. The cheque had, obviously, bee....... + More

Dishonor of Cheque - insufficiency of funds - failure to lead any evidence despite of opportunity provided - locus standi to file the complaint under Section 138 of NI Act - offence punishable under Section 138 of NI Act - HELD THAT:- This Court is convinced and satisfied that complainant successfully proved on record that cheque in question was issued by the accused for discharge of his lawful liability and such cheque on its presentation was dishonoured on account of insufficient funds. Evidence led on record clearly reveals that complainant after having received memo from the bank concerned advised accused by way of legal notice to make the payment good within the stipulated period, but since he failed to do so, complainant had no option, but to file/institute complaint under Section 138 of the Act. In the case at hand bare perusal of ....... + More

Dishonor of Cheque - amicable settlement arrived or not - seeking exemption of compounding fee on the ground that due to poor financial condition, petitioner could not pay the amount well in time - HELD THAT:- After depositing compounding fee/cost, petitioner shall place a copy of receipt of deposit of compounding fee on record of this petition. In case of default in depositing compounding fee/cost with the H.P. State Legal Service Authority, Shimla within eight weeks from today, the judgments of conviction and sentence shall automatically revive. As an amount of ₹ 70,000/- has been deposited by the petitioner in the Registry of this High Court, therefore, Registry is directed to release the aforesaid amount in favour of complainant Subhadra Devi, along with interest, if any accrued thereon, without issuing notice to the accused-pet....... + More

Murder or death by falling in the well under the influence of liquor - giving threats for the offences under Sections 504 & 506 IPC - presumption of innocence - HELD THAT:- The order granting bail to the accused pending appeal lacks total clarity on which part of the judgment and order can be said to be submissions and which part can be said to be the findings/reasonings. It does not even reflect the submissions on behalf of the Public Prosecutor opposing the bail pending appeal. A detailed counter affidavit was filed on behalf of the State opposing the bail pending appeal which has not been even referred to by the High Court. The manner in which the High Court has disposed of the application under Section 389 Cr.P.C. and has disposed of the application for bail pending appeal cannot be approved. It is very unfortunate that by this ju....... + More