Reopening of assessment u/s 147 - assessee not eligible to claim deduction under Section 80IA - jurisdictional requirements for invocation of Section 147/148 - HELD THAT:- In the instant case, on a reading of the contents of the order, we find that the reason set out does not have any nexus to the fact that there had been a failure on the part of the respondent/assessee in fully disclosing all material facts or that there was any basis for interfering on account of the said reason there had been any escapement of income. In fact, the primary jurisdictional requirement for reopening any assessment beyond a period of four years must be fulfilled strictly, otherwise it would be an arbitrary exercise of power. In the instant case, on perusing the reasons recorded dated 15.3.2016 we do not find anything to the effect that the assessee had not ....... + More

Disallowance u/s 14A r.w.r. 8D - investment in the form of share application money by the company would only result in exempt income - HELD THAT:- As decided in M/S.QUEST GLOBAL ENGINEERING SERVICES PVT. LTD. [2021 (3) TMI 434 - KARNATAKA HIGH COURT] only expenses proportionate to earning of exempt income could be disallowed under Section 14A of the Act and the decision of MAXOPP INVESTMENT LTD [2018 (3) TMI 805 - SUPREME COURT] is an authority for the aforesaid proposition that the provision is relatable to earning of actual income. The object of Section 14A is to curb the practice to claim deduction of expenses incurred in relation to exempt income against taxable income and at the same time avail of the tax incentive by way of exemption of exempt income without making any apportionment of expenses incurred in relation to exempt income........ + More

Reopening of assessment u/s 147 - purchase of a landed property - Before the first respondent petitioner did not appear and as a result, the first respondent was constrained to dismiss the petitioner's appeal and confirm the assessment order passed by the original authority - HELD THAT:- The petitioner had produced the copy of the sale deed dated 07.03.2013 before this Court. It is seen therefrom that the petitioner had purchased the property on 07.03.2013 for a sum of ₹ 84,80,000/- . But then the impugned order proceeded on the premise that it is worth of ₹ 8,46,00,000/-. If only the petitioner had produced the materials before the authority concerned, he would not be finding himself in the present position. In any event in the interest of justice and to give one more opportunity to the petitioner and since the petitioner....... + More

Income deemed to accrue or arise in India - Consideration from sale of software licenses taxed as royalty - PE in India - Whether AO and the Hon’ble DRP has erred in treating the consideration received from sale of software license taxable as ‘Royalty’ both under the provisions of the Act as well as Article 12 of the Double Taxation Avoidance Agreement (‘DTAA’) between India and Singapore? - HELD THAT:- The issue of software income is not a royalty income is settled by the Hon’ble Apex Court in case of Engineering Analysis Centre of Excellence Pvt. Ltd. [2021 (3) TMI 138 - SUPREME COURT] The Legal Principal and the factual matrix are identical in present Assessment year of the assessee to that of the issues discussed in case of Engineering Analysis Centre of Excellence Pvt. Ltd.. Besides this, the issue is covered in favour of assessee in previous year as well. Hence, the appeal of the assessee is allowed.

Claim of exemption u/s 54 - assessee failed to comply with section 54 by not depositing the unutilized amount of capital gain in the Capital Gains Deposit Scheme, 1988 within the stipulated time of furnishing the return of income-tax u/s 139 - HELD THAT:- We have carefully considered the judgment passed in the matter of ITO vs. Nilima Abhijit Tannu [2019 (7) TMI 1073 - ITAT MUMBAI] where the same issue has cropped up and it was observed that when the unutilized portion of capital gain on sale of capital asset is required to be deposited before the date of furnishing of return of tax under Section 139, in such a situation Section 139 cannot be meant only Section 139 but it means all sub-Sections of Section 139. Tribunal has been pleased to hold that the assessee has fulfilled condition for deduction u/s 54F within extended time limit of fi....... + More

Reopening of assessment u/s 147 - Disallowing the appellant’s claim of deduction under section 80IB(11A) - initiation of the proceeding after the expiry of 4 years from the date of completion of the relevant Assessment Year - HELD THAT:- Reopening of an assessment under section 147 is not permitted merely on the ground that there is change in the view of the Assessing Officer and subsequently he believes that earlier views was incorrect particularly when the assessment order itself records that the issue was raised and was decided in favour of the assessee. In that view of the matter the reassessment proceeding in such a case will be hit by the principle of change of opinion and thus liable to be quashed. Since the assessee had truly disclosed all the relevant material facts necessary for the assessment, the preconditions for invoki....... + More

Disallowance of deduction u/s. 80IC under the head interest and financial charges, common expenses of corporate expenses and common expenses of corporate and plastic division - AO was of the view that the interest expenditure required to be allocated proportionately in the ratio of sales for deduction u/s. 80IC of the Act for the industrial undertaking of the assessee - HELD THAT:- No error in the decision of ld. CIT(A) for allocating common interest & financial charges on the basis of investment. Similar in respect of deleting addition of common head expenses and plastic/corporate division expenses made on sales basis, we do not find any infirmity in the decision of ld. CIT(A) after following the decision of the Co-ordinate Bench as cited above in this order. Taking into consider the finding of the Coordinate Bench in the case of ass....... + More

Reopening of assessment u/s 147 - not supplying of reasons for reopening of the assessment - HELD THAT:- We are of the view that there is no merit in the contention of the assessee that reason for reopening was not furnished to him. Since it is evident from the material placed on record from the assessment record that assessee has been supplied reasons for reopening the assessment therefore the judicial pronouncements referred by the assessee of Hon’ble Court of Bombay in the case of CIT Vs. IDBI Ltd. [2016 (10) TMI 166 - BOMBAY HIGH COURT] are distinguishable from the facts of the case of the assessee and not applicable to the case of the assessee. In the light of the above circumstances, we do not find any justification of the contention of the assessee that no reasons for reopening of the assessment under section 147 was furnishe....... + More

Deduction u/s 80P(2) - as per AO assessee being a primary co-operative bank was hit by the provisions of Sec. 80P(4), and thus, was not eligible for claim of deduction under Sec. 80P(2)(a)(i) - contention of the assessee that it was a co-operative credit society providing banking/credit facilities only to its members and was not a co-operative bank providing banking/credit facility to the public at large did not find favour with the A.O. - HELD THAT:- We are persuaded to subscribe to the observations of the CIT(A) that as the assessee which is a co-operative credit society is not a primary co-operative bank, hence, it would not be hit by the provisions of Sec.80P(4) as had been made available on the statute vide the Finance Act, 2006 w.e.f 01.04.2007. Our said view is fortified by the fact that it is absolutely mandatory for a co-operativ....... + More

CIT(A) enhancing the income of the assessee u/s. 251(1)(a) r.w.s. 251(2) - CIT-A enhanced the assessment by computing book profits U/s. 115JB - HELD THAT:- CIT(A) cannot touch or delve on any issue which does not arise from the order of assessment and which was outside the scope of or an issue which is not a subject matter the order of the assessment. In the case on hand, the issue of computation of book profits U/s. 115JB of the Act was not an issue that was a subject matter during the course of assessment proceedings. This issue of computation of book profits U/s. 115JB of the Act, does not arise from the order of the assessment. Section 115JB of the Act, is a "self contained code" as per the CBDT Circular No. 13/2001, dt. 09/11/2001 and was outside the scope of the order of assessment passed by the Assessing Officer U/s. 143(....... + More

Unexplained cash credits addition u/s.68 - unexplained commission u/s.69C - as per assessee when books of accounts were rejected u/s.145(3) of the Act and profit is estimated, then same books of accounts cannot be considered for invoking provisions of section 68 to make addition - assessee has also challenged addition on merits by filling necessary evidences including confirmation letters from the creditors and argued that the assessee had discharged his burden to prove the identity, genuineness of the transactions and credit worthiness of the parties - HELD THAT:- It is an admitted fact that the AO has rejected books of account u/s.145(3) of the Act and estimated profit from the business by adopting 12.5% net profit on gross receipts - once books of account are rejected u/s.145(3) of the Act, no further additions can be made by relying u....... + More

TDS u/s 195 - license fee payment without deducting TDS SUPIMA, USA - AO observed that the assessee has made a payment to SUPIMA, USA for use of the mark SUPIMA(R) at the time of sale of the products as it give credibility to the product. Thus, the assessee’s contention is that they do not derive any benefit out of its self-contradictory - HELD THAT:- The assessee-company is manufacturing cotton yarn. It imports long staple cotton from America known as “PIMA” cotton and producing cotton garments. The assessee entered into a contract with SUPIMA® license agreement dated 01.01.2015 as per Article I & II clearly shows that SUPIMA(R) has granted a license to the assessee. From the above Article I & II, it is very clear that the SUPIMA is the owner of the trade mark. This Logo for using in connection with apparel,....... + More

Addition based on seized document in search - undisclosed sales receipts on the sale of plots in the project ‘N.R. Estate - assessee's sole grievance is that opportunity of cross examination was not provided and the additions were made merely on the basis of third party information gathered at the back of appellant - whether the Ld. A.O was justified in applying the estimated rate per sq. feet of land for the plots sold by both the assessee(s) as against the sales shown in the regular books of accounts duly evidenced by registered sale deeds”? - HELD THAT:- We observe that in the alleged seized diary found from the premises of Mr. Kamal Goyal there was information of few plots of land and the rate of sale per sq.feet was ranging from ₹ 1150/- to ₹ 1131/- per sq.ft but the Ld. A.O failed to record the basis for ....... + More

Addition u/s 68 - undisclosed share application monies received from 5 companies - AR submitted that the transactions with the investing companies were genuine and assessee has complied the conditions stipulated in section 68 - HELD THAT:- All the transactions were routed through the banking channel which proves that the transaction is genuine. Since assessee has submitted all the relevant document to prove the genuinity of the transaction which led him to come to the conclusion that assessee has discharged the initial onus cast upon him to establish the identity, creditworthiness and genuineness of the transactions. He observed that the onus now shifted to the AO. AO could have carried out independent verification of all the parties by issuing summons under section 131 of the Act. The assessing officer has not made any further investigat....... + More

Disallowing on account of expenses incurred in giving free samples of veterinary medicines - AO observed on the basis of details furnished by the assessee that these expenses are mostly incurred to give free samples to veterinary doctors and these veterinary doctors are further supposed to distribute the same to their patients so that the business of the assessee flourishes - HELD THAT:- The sample distributed for marketing these products by the assessee is not in violation of any guidelines issued by the Veterinary Council of India or Medical Council of India. Besides the said regulations are applicable to the doctors and their associate professionals and not to the company engaged in manufacturing of these veterinary products. In fact these expenses are incurred wholly and exclusively for the purpose of increasing the sale of the compan....... + More

Reopening of assessment - Assessee has erroneously applied CBDT Circular No.09/2014 dated 23/04/2014 and claimed amortization expenses for the financial year 2014-15 - As submitted that since the assessee was entitled to deduction under Section 80IA of the Income Tax Act, 1961, there was no question of any escapement of tax as increase in income by not claiming amortization would not result in the assessee paying any further tax as the same was 100% deductible under Section 80IA - HELD THAT:- Commissioner of Income Tax should have looked into the fact as to whether there could not be an escapement of tax because of the fact of the deduction available to the petitioner under Section 80IA. It is to be noted that this was the last year of deduction that was available to the petitioner out of the ten consecutive years that is available. As th....... + More

Stay of demand - pre deposits demand - Deduction u/s 80P - HELD THAT:- This Court by relying on the observation of the Honorable Supreme Court THE MAVILAYI SERVICE COOPERATIVE BANK LTD. & ORS. [2021 (1) TMI 488 - SUPREME COURT] has in several such matters have directed the appellate authority to decide the appeal without insisting for either pre- deposit or for payment of tax in pursuant to the Assessment Orders. In this view of the matter as the statutory appeal is pending for consideration before the 2nd respondent, the second respondent is directed to decide the appeal expeditiously and till disposal of the appeal, recovery in pursuant to the Assessment order at Exhibit P1 is deferred till disposal of the appeal by the 2nd respondent

Stay of demand - whether assessing officer can grant deposit orders of a lesser amount than 20% pending appeal without making reference to the administrative Pr.CIT/CIT? - HELD THAT:- As in M/S. LG ELECTRONICS INDIA PVT. LTD. [2018 (7) TMI 1905 - SC ORDER] clarified that in all cases arising under 220(6) of the Act, it will be open to the authorities on the facts of individual cases, to grant deposit orders of a lesser amount than 20% pending appeal. This was laid down by the Hon'ble Supreme Court since it was submitted that the administrative circular will not operate as a fetter on the Commissioner since he is a quasi-judicial authority. Since the Assessing Officer is exercising quasi-judicial power by virtue of Section 220(6) of the Act, the implication of the clarification of the legal position by the Hon'ble Supreme Court is ....... + More

Assessment u/s 153C - compliance or non-compliance with the jurisdictional parameters necessary to initiate action under Section 153C - Jurisdiction to initiate proceedings under Section 153C - jurisdictional issue was not permitted to be raised before the ITAT, inter alia on the ground that there was a necessity of filing cross-objections expressly raising such a jurisdictional issue and because there was no sufficient cause shown for condoning the delay of 248 days in raising such jurisdictional issue by filing cross-objections - HELD THAT:- In the present case, it is not as if the issue of non-fulfillment of jurisdictional parameters of Section 153C was raised but rejected by the CIT (Appeals). Such an issue was not raised before the CIT (Appeals). Having regard to the provisions of Rule 27 of the Appellate Tribunal Rules, 1963 as also....... + More

Applications u/s 119(2)(b) for condoning the delay and accepting the return for the assessment years 2015-16 and 2016-17 - petitioner says that since the order passed under the provision of Section 119(2)(b) does not come within the ambit of the orders specified in Section 245 of the said Act, the said order is also not appealable - HELD THAT:- The department ought to have taken a justice-oriented approach instead of taking a highly pedantic approach in refusing to condone the delay on the part of the petitioner in filing the return for the assessment year 2015-16. The order dated 25th August, 2020 passed by the Principal Chief Commissioner of Income Tax (International Taxation), being the respondent no.1, in respect of the assessment year 2015-16 is set aside. The Principal Chief Commissioner of Income Tax (International Taxation), being....... + More

Reopening of assessment u/s 147 - Addition u/s 68 on Unexplained cash Credit - Whether jurisdiction to the AO would lie under s.153C of the Act, if any and invocation of jurisdiction under s.147 of the Act in the case of assessee, arising from search in Venus Group, is contrary to scheme of the Act and thus devoid of legitimacy? - HELD THAT:- The debate on scope of conferment of powers under S. 153C prior to its amendment by Finance Act, 2015 was subjected to judicial scrutiny. The Courts have consistently held that the expression ‘belongs to’ with reference to person other than searched person implies something more than idea of casual association and Section 153C of the Act could not be invoked in the pre amendment era unless the AO of the searched person is satisfied for cogent reason that the seized documents belong to the....... + More

Addition u/s 56(2)(viib) - difference of net asset value credited in the books - excess consideration received qua face value of shares issued on account of amalgamation - CIT-A deleted the addition - whether the shares received by the amalgamating company in consideration of vesting of its assets, liabilities and undertaking in the amalgamated company pursuant to scheme of amalgamation is hit by the deeming provisions of Section 56(2)(viib) of the Act in the facts of the present case? - HELD THAT:- It may be possibly argued that Section 56(2)(viib) does not oust its applicability in the event of shares issued pursuant to amalgamation. The amalgamation is a compromise or arrangement between the parties, which inter alia includes the amalgamated company issuing the shares and the shareholders of the amalgamating company, which is supervise....... + More

Addition u/s 68 - assessee-company engaged during the year in raising capital by way of share capital and premium on share capital - onus upon assessee to prove identity of the Creditors/Investors, their creditworthiness and genuineness of the transaction - HELD THAT:- A.O. on going through the bank statements of both the Investors found that there is receipt of funds from some source. Thus, even the A.O. did not doubt the creditworthiness of both the Investors in the assessment order. Thus the A.O. did not doubt their source at all. The A.O. did not make any enquiry from the income tax record of both the Investor Companies. It is well settled Law that A.O. cannot ask the assessee to prove source of the source. We rely upon Judgment of Hon’ble Delhi High Court in the case of CIT vs., Dwarakadhish Investment P. Ltd., [2010 (8) TMI 23....... + More

Penalty u/s 271(1)(c) - undisclosed interest income on the undisclosed deposits in HSBC Bank, Geneva - as per revenue assessee has deliberately concealed interest income in HSBC, Geneva - CIT-A deleted the addition - HELD THAT:- In assessee’s own case for Assessment Year 2014-15 . [2020 (10) TMI 1238 - ITAT DELHI] wherein an identical addition on account of interest has been deleted on the ground that the ITAT had earlier deleted the addition on account of investment in the bank accounts itself. Since, we have upheld the deletion of the quantum addition by the Ld. CIT(A) in the foregoing paragraphs, there is again no reason to deviate from the findings of the Ld. CIT(A) in deleting the penalty imposed against the quantum addition. We uphold the deletion of penalty by the Ld. CIT(A). - Decided against revenue.

Receipt on sale of carbon credit - Capital Receipt OR revenue receipt - HELD THAT:- CIT(A) has allowed claim of the assessee for exclusion of receipt from sale of CERs (carbon credit) as capital receipt by following the decision in the case of M/s. My Home Power Ltd. [2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT] held that carbon credit not being an offshoot of business, but an offshoot of environmental concern, amount received on transfer had no element of profit or gain. The Hon'ble Jurisdictional High Court of Madras in the case of Ambika Cotton Mills Vs ACIT [2014 (3) TMI 428 - ITAT CHENNAI] had considered an identical issue and held that sale of carbon credit is to be considered as capital receipt. The Hon'ble High Court of Madras in the case of M/s. S.P. Spinning Mills Pvt.Ltd. [2021 (1) TMI 1081 - MADRAS HIGH COURT] had once....... + More

Applicability or determination of liability to pay Tax - Solar HT XLPE & LT XLPE Cables - availability of benefit of concessional rate of GST @ 5% - Entry Sr.No.234 of the Schedule-I to Notification No.1/2017-Integrated Tax (Rate) - non-submission of various details - HELD THAT:- In the event of non-submission of the documents by the applicant, it would not be possible to take a decision in the matter since the issue in hand covers supply of goods such as cables for the Solar Power Generating System and after going through the details, there appears to be a distinct possibility of supply of services being involved in the instant case, along with the supply of goods and in such an eventuality, the nature of the transaction as well as the aspect of GST liability thereon are likely to be completely different. There is also every likeliho....... + More

Rejection of request for filing of GST TRAN-1 - petitioner would state that though he made several attempts to file form GST TRAN-1, he could not do so due to technical glitches - HELD THAT:- There can be no doubt that the petitioner made effort to upload the details in the web portal. Even according to the respondents, though Rule 117 of CGST Rules, 2017, originally stipulates that Form TRAN-1 is filed within 90 days, there was a periodical extension and the final extended date was 31.03.2020. In the present case, the impugned order itself came to be passed on 28.08.2019. Therefore, applying the decision made in M/S. CHECKPOINT APPAREL LABELING SOLUTIONS INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, 1. THE COMMISSIONER OF GST & CENTRAL EXCISE, THE SUPERINTENDENT OF CENTRAL TAX (CGST) , THE NODAL OFFICER -....... + More

Revocation of cancellation of registration - non submission of reply to the SCN within the time specified therein - Rule 23 of the CGST Rules, 2017 - HELD THAT:- The appellant did not discharge their total interest liability rather he stated that since he had not paid any tax liability through cash hence no any interest liability arised as per press note released on 22nd December 2018 - in terms of proviso of Section 50 of CGST Act, 2017 amended vide Notification No.63/2020- C.T dated 25.08.2020 interest liability on net tax has been considered on prospective date i.e. with effect from 1st Sept 2020. The appellant has not been complied with the first proviso of Rule 23 of CGST Rules, 2017 - the cancellation of registration of appellant may not be considered for revocation - Appeal dismissed - decided against appellant.

Reverse Charge Mechanism - Liability of GST - rate of GST - pure agent services or not - interest on late payment of invoices of imported goods - reimbursement of Stamp tax paid as a pure agent. Whether liability to pay GST on reverse charge arises if amount is paid as interest on late payment of invoices of imported goods? - If yes, then at what rate? - HELD THAT:- The foreign buyer has tolerated the act of receiving payment after a lapse of a period of 120 days from the date of the invoice in respect of the goods supplied by them to the applicant for which interest is to be paid by the applicant. We, therefore, find that the aforementioned act will be covered under the Supply of Services under Entry No.5(e) of the aforementioned Schedule-II which reads as “(e) agreeing to the obligation to refrain from an act, or to tolerate an ac....... + More

Applicability or determination of liability to pay Tax - Solar HT XLPE & LT XLPE Cables - availability of benefit of concessional rate of GST @ 5% - Entry Sr.No.234 of the Schedule-I to Notification No.1/2017-Integrated Tax (Rate) - non-submission of various details - HELD THAT:- In the event of non-submission of the aforementioned documents by the applicant, it would not be possible for us to take a decision in the matter since the issue in hand covers supply of goods such as cables for the Solar Power Generating System and after going through the subject portion mentioned in the amendment of the original purchase order dated 25.12.2018, there appears to be a distinct possibility of supply of services being involved in the instant case, along with the supply of goods and in such an eventuality, the nature of the transaction as well a....... + More

Classification of goods - Flavored Milk sold under trade name of Power Sip - to be classified under Heading 0402, Sub Heading 04029990 or not - HELD THAT:- From the constituents of the product as furnished by the applicant, it is seen that the product consists of Standardized Milk (92.00%) without removal of Fat content thereon, which is sweetened with around 8% of sugar to which color 0.08% and flavor in kesar & Badam Milk 0.120%, Rose milk 0.075% and Elaichi Milk 0.150% etc. are added and is supplied in tetra packs/ Bottle after necessary processes. The products are marketed as “Power Sip” i.e. “Flavoured milk” and are ready for consumption as stated by the applicant. Comparing the product and those covered under CTH 0402/0404, it is evident that the product in hand consisting of milk flavored with Badam/Elai....... + More

Classification of service - rate of tax - Works Contract - Construction service provided by the applicant in the capacity of sub-contractor to the main contractor - taxable at the rate of 12% for the period prior to 25.01.2018 or not - N/N. 11/2017-CT (Rate) dated 28.06.2017 was amended by N/N. 01/2018-CT (Rate) dated 25.01.2018 - HELD THAT:- Notification No. 01/2018-CT (Rate) dated 25.01.2018 a new entry no. 3(ix) was inserted in the principal rate Notification No. 11/2017-CT (Rate) dated 28.06.2017 vide which “Composite supply of works contract as defined in Clause (119) of Section 2 of the Central Goods and Services Tax Act, 2017 provided by a sub-contractor to the main contractor providing services specified in item (iii) or item (vi) above to the Central Government, State Government, Union territory, a local authority, a Govern....... + More

Classification of supply of goods - Aluminium Foil Type Winding Inverter Duty Transformer - classifiable under Chapter Heading 8504 or not - parts of Transformer supplied / to be supplied for initial setting up of solar project falls under Sr. No. 234 in Schedule-I to Notification No. 01/20017-Central Tax (Rate) dated 28th June, 2017 or otherwise - rate of tax. HELD THAT:- The components of the solar power plant which are essential for setting up of the power plants would also be eligible for the benefits provided to the solar power plant. Accordingly, Aluminum Foil Type Winding Inverter Duty Transformer and their parts are an essential part/ device of Solar Power Generating System and are eligible for the benefit of Sr. No. 38 of Not. No. 01/2017-CT (Rate) dated 28.06.2017. A reading of the submitted both P.O. and technical specification....... + More

Classification of goods - HSN Code - rate of tax - Flavored Milk - to be classified under the Tariff heading 04029990 or otherwise? - HELD THAT:- The product consists of Standardized Milk (92.1%) without removal of Fat content thereon, which is sweetened with around 8% of sugar to which color 0.08% and flavor 0.02%, etc. are added and is supplied in tetra packs/ Bottle/ Tin container after necessary processes. The products are marketed as “Amul Beverages” i.e. “Amul Kool Flavoured Milk”, “Amul Kool Café” “Milk shakes’ “Sports Drink” and “Smoothies” and are ready for consumption as stated by the applicant. Comparing the product and those covered under CTH 0402/0404, it is evident that the product in hand consisting of milk flavored with Badam/Elaichi/Kesar/Rose/....... + More

Clandestine Removal - seizure of unaccounted/excess goods - partner and manager of the assessee could not produce any documents or records related to the finished goods found in the premises - Confiscation of goods - redemption fine - penalty. HELD THAT:- Respondent no where raised any objection of search proceedings as well as Panchnama proceedings conducted by the investigating team from which it may be inferred that the entire proceedings were conducted in transparent and fair manner. During the proceedings the physical stock was also verified and it was found excess against the entries of stock register/books of accounts. The whole proceedings were done in the presence of two independent witnesses and in the presence of employees of the respondent/assessee and on later period the Partner of the Firm had also joined the search proceedi....... + More

Maintainability of petition - availability of alternative remedy - Delegation of powers by the commissioner - Provisional attachment - Proceedings initiated u/s 83 - petitioner admits that there is alternate remedy available, but contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions - It was held by High Court that the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable. HELD THAT:- Arguments concluded - Judgment reserved.

Sub-Contract from a Sub-Contractor - Sub-contractor is sub-contracted from a sub-contractor of the main contractor - main contractor is provider of works contract to a Government entity - eligibility for concessional rate of GST - no privity of contract between applicant and main contractor - HELD THAT:- In the instant case, it is seen that there is no privity of contract between the applicant and M/s. Karnataka Neeravari Nigam Ltd. The original contract is awarded by M/s. Karnataka Neeravari Nigam Limited to M/s. Ocean Constructions (India) Private Limite - Hence as per the notification, any subcontractor providing services to Main contractor by executing the works mentioned in the serial number 3 of clause (iii) and clause (vi) which is exclusively covered under the clause (ix) of serial no.3 of Notification No. 11/2017- Central Tax (Ra....... + More

Taxability - levy of GST - Rent received from Backward Classes Welfare Department - services of renting an immovable property - exemption under entry number 3 of N/N. 12/2017 -Central Tax (Rate) dated 28-06-2017 - HELD THAT:- The applicant has rented his property to the Backward Classes Welfare Department, Government of Karnataka, who in turn is using the same for providing hostel facilities to the post metric girls of backward classes. This is in relation to the function entrusted to a panchayat under article 243G of the constitution which is covered by 27th entry of 11th schedule which says Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes. Since the applicant is providing to the State Government pure services by way of any activity in relation to any function entrusted to a Panchayat un....... + More

Classification of supply - rate of tax for the scope of supplies - independent supplies or composite supply with principal supply of goods - supplies made by different Cost Centres - naturally bundled services - Time of supply - HELD THAT:- It is seen that the applicant was a successful bidder to the tender invited by the BMRCL and the tender is for “Supply of 150 numbers of Standard Gauge Intermediate Cars compatible with and suitable for integration with the existing trains of Bangalore Metro Rail Project Phase-I”. The applicant has applied and been allotted the work and the applicant has entered into the contract with BMRCL vide Contract No.3 RS-DM dated 25th March, 2017. It is clear that the contract is for manufacture and supply of Standard Gauge Intermediate Cars along with integration with installation and commissioning....... + More

Export of services or not - levy of GST on foreign supplier on their service charges - services of stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods which are temporarily imported - zero rated supply or not - place of supply of services or not - HELD THAT:- The fertilizers/goods are discharged from the vessel, brought from the vessel to the custom bonded warehouse, packed in smaller bags as per the requirement of the client and thereafter dispatched from the warehouse after 2/3 months ( as per instructions of their clients) for export to the ultimate buyers of the clients of the applicant. It is therefore, apparent that the aforementioned fertilizers/goods never cross the customs barrier and mix-up with the indigenous goods as these goods were temporarily imported to India (for export purpose) a....... + More

Local Authority or not - Ahmedabad Municipal Transport Service - engaged in rendering passenger transportation services and runs public buses in the city of Ahmedabad within the limits of Municipal Corporation - GST on procurement of security services received from any person other than body corporate under reverse charge mechanism - GST on advertisement services or the service recipient of AMTS is required to pay GST under reverse charge mechanism - registration as a Deductor under GST as per the provision of Section 24 of the CGST Act. Whether the applicant i.e. AMTS would be qualified as “local authority” as defined under the CGST Act, 2017? - HELD THAT:- AMTS is a statutory authority established to carry out the functions entrusted to a Municipality under Art. 243W of the Constitution. It is a body discharging municipal fu....... + More

Classification of goods - rate of GST - Bollards - Bolts, nuts, screw, washer etc. known as fixtures - Frontal Frames - Fascia Pads - UHMW PE pads - Buoys - Chains/Swivel/D-Shackle/Chain tensioner - Rubber Fender (both types) - few products such as frontal frames with fascia pads along with fixture as a complete set - fender panel system along with services such as assembly, installation & supervision service - supply of installation service where usage of chemical is essential to provide effective service - composite supply or not - classification of the bundle. Classification of goods - rate of GST - Bollards - HELD THAT:- ‘Bollards’ would be rightly covered under Tariff heading 73259999 - N/N. 01/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), Sub-heading 7325 finds mention at Entry No.237 of Sc....... + More

Utilisation of Input Tax Credit - Balance available in the Electronic Credit Ledger legitimately earned on the inputs/raw-materials/inward supplies(meant for outward supply of Bullions) - whether the balance available can be used towards the GST liability on ‘Castor Oil Seed’ which were procured from Agriculturists and subsequently meant for onward supply - ‘Castor Oil Seed’ is intended to be supplied in domestic market or to export it - HELD THAT:- For the applicant, to be eligible to take input tax credit on any supply of goods or services, the same has to be used or should be intended to be used in the course or furtherance of his business i.e. the nexus/connection between the inputs and the final products manufactured from these inputs is required to be proved - For example, inputs such as dores of gold, silver....... + More

Governmental Authority or not - National Institute of Design, Paldi, Ahmedabad (NID) - liability to pay GST on procurement of services under reverse charge mechanism - Security services received from any person other than body corporate as per N/N.13/2017 - Central Tax (Rate) - Access to e-books/e-database from service provider located outside India as import of service as per N/N.10/2017 - IGST (Rate) - requirement to be registered as a tax deductor under GST as per the provision of Section 24 of the CGST Act. Whether NID would qualify as ‘governmental authority’ as defined under the Integrated Goods and Services Tax Act, 2017? - HELD THAT:- For the applicant to fall under the definition of ‘Governmental Authority’, the following 3 conditions will be required to be satisfied: (1) It has to be set up by an Act of P....... + More

Scope of Advance Ruling - Classification of supply - export of services - zero rated supply or not - Commission paid to foreign agent who is non resident of India and he does not have any permanent establishment or business connection in India - liability of GST on such commission payable to foreign agent related to service provided out of India. HELD THAT:- Both the questions raised by the applicant do not fall within any of the clauses of (a) to (g) of Sub-section(2) of Section 97 of the said Act, i.e. they do not fall within the ambit of Section 97(2) of the said Act as both the questions are related to export of service which would also require the determination of place of supply of services which is not under the scope of jurisdiction of the Advance Ruling Authorities.

Attachment of petitioner's Bank accounts - import of Brass Scrap(Melon) from Maldives - re-export of goods allowed or not - selling of goods allowed or not - HELD THAT:- As rightly pointed out by the learned counsel appearing for the petitioner, even while holding that the goods are liable for confiscation for the very same breath, the assessing authority had held that the goods can be reexported - Therefore, no final order of confiscation has been passed so far. It is not as if the import of the goods is totally prohibited. They would only come under the restricted category. Therefore, the goods can be sold to someone who is authorised to take the goods. Therefore, by selling the goods in question to someone who is authorised to take the same, the Government will definitely be getting some revenue. I do not understand as to why, such....... + More

Maintainability of appeal - requirement with the condition of pre-deposit - Smuggling - Absolute Confiscation - prohibited sandal woods - Section 129E of the Customs Act - HELD THAT:- The pre-deposit of entire 10% of the demand under challenge has been made which includes 7.5% thereof as was required to be deposited at the time of filing appeal before Commissioner (Appeals) and 2.5% thereof as is required at the time of filing appeal before this Tribunal. Further, keeping in view that there is no denial to the submission that no defect memo was given to the appellant nor any opportunity of being heard was ever provided, the same is held to be the non-compliance of principal of natural justice specifically that “no one shall be condemned unheard”. Hon’ble Gujarat High Court in the matter of M/S. KLJ PLASTICIZERS LTD VERSU....... + More

Validity of SCN issued - SCN issued inspite of certificate of origin issued by the Ministry of Foreign Affairs - the case is that the show cause notices make holes in the authenticity of the certificate of origin that has been issued and other document that has been issued by the suppliers of Bangladesh - HELD THAT:- Subsequent to the judgement of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], the D.R.I. has lost its authority to issue any show cause notice under Section 28 of the Customs Act, 1962 - there appears to be a prima facie case for staying the show cause notice following the judgement in M/s. Canon India Pvt. Ltd. Let affidavit-in-opposition be filed within four weeks, reply thereto, if any, two weeks thereafter. Let the matter appear in the combined monthly list of July, 2021.

Seeking Mandamus forbearing the respondents i.e. the Commissioner and Assistant Commissioner of the Customs Department/R1 & R2 as well as the Regional Manager of the MSTC Limited, Chennai/R3 from auctioning and selling the property - HELD THAT:- An order has been passed on 29.03.2021. The order is to the effect that 50% of the property does vests with the petitioner and his wife and the auction proposed is only in regard to the remaining portion that vests with the petitioner's brother and his wife. With this, the Mandamus sought for is achieved and the writ petition is disposed recording the aforesaid submissions and confirmation of the learned Counsel for R1 & R2. Learned counsel for the petitioner at this juncture refers to the Customs (Attachment of property of Defaulters for Recovery of Government Dues) Rules, 1995 statin....... + More

Rejection of refund claim - Customs Duty paid in excess - period of limitation - refund application filed on 06.01.2010 by appellant before the Deputy Commissioner of Customs, Refund Section, Bangalore - compliance with the period of limitation specified under Section 27 of the Customs Act, 1962 or not - HELD THAT:- In the present case, duty of customs payable on the transaction in question under the statute is ₹ 4,743/-, which has been admitted by the respondent and on account of erroneous calculation, the duty has been paid in excess to the tune of ₹ 42,26,975/-. The Authorities have turned down the claim of appellant on the ground of limitation. The claim of the appellant could have been corrected and the Tribunal has erred in observing that the payment of excess duty requires to be rectified under Section 154 of the said A....... + More

Advance Authorization scheme - Export of goods under Assorted Utensils - Table Kitchen articles made from non-magnetic stainless steel grade - 201, of relevant thickness” and country of destination being Gambia - It appeared to Revenue that the goods under export are not as per the conditions of the Advance license - HELD THAT:- The impugned order relates to the mis-use of Advance license procedure. Further, in view of the redemption certificate(s) issued by the Ministry of Commerce in respect of the two Advance Licences in question, certifying that the appellant have discharged their obligation, the issue no longer survives. Appeal allowed - decided in favor of appellant.

Valuation of imported goods - small printer part, big printer part and data cable - redetermination of value based on contemporaneous import data of the goods that were actually imported - SCN waived by importer itself - Confiscation of goods - redemption fine and penalty - HELD THAT:- The issue of re-determination of the duty under Section 17 when the importer gives in writing that he does not want the show cause notice and accepts the re-determination was decided by this Bench and the batch of appeals in the case of Commissioner of Customs versus Hanuman Prasad & Sons [2020 (12) TMI 1092 - CESTAT NEW DELHI] where it was held that The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matte....... + More

Benefit of advance authorisations - provisional release of seized goods - seeking assessment of Bills of entry - drawing samples of the goods in the containers to have tested at a laboratory - goods misdeclared or not - HELD THAT:- It appears that samples had accordingly been sent to one laboratory M/s. Geo Chem Laboratory and once again to JNCH laboratory, and that test results have also been known. With reference to the same, several contentions are being advanced on either side, including there is a request on behalf of the petitioner to draw samples once again contending that third portion of sample is not supplied to petitioner and to have tests carried as suggested by them, purporting to emphasize that in several tests can be carried out by which results would not be same, as contended by the revenue. There are several matters in di....... + More

Territorial Jurisdiction - Levy of penalty u/s 112(a) of the Customs Act, 1962 - import of confectionery items from Dubai - Allegation of under valuation by DRI - error in not relying on th decision of Larger Bench of this Tribunal in M/S SEVILLE PRODUCTS LIMITED VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2021 (3) TMI 775 - CESTAT NEW DELHI] - appellant is located in Dubai, outside of India and having no office in India - HELD THAT:- It was inquired from the ld. A.R. about the decision of the Larger Bench on this issue by this Tribunal passed in 2021. The ld. A.R. fairly accepted that he is not aware of the decision. It is very unfortunate that the departmental officers appearing before this Court are not updated with the latest judgments of this Tribunal. As there is a decision of the Division Bench of this Tribunal which is against the ....... + More

Import of prohibited goods - Decalcified Fish scale for Collagen (Fish Protein) - Revenue found the item to contain pathogenic Salmonella on testing and directed the importer to move the cargo back to Customs jurisdiction - re-export of goods allowed subject to payment of redemption fine and penalty - HELD THAT:- The Commissioner(Appeals) in the impugned order has specifically allowed the benefit to the appellant under Section 74 of the Customs Act, 1962 for reexport of goods as the governing factors under Section 74 for reexport of goods imported have not been violated by the appellant - when the goods allowed to be reexported by the Commissioner(Appeals), then the imposition of redemption fine and penalty is not sustainable in view of the various decisions relied upon by the appellant. Tribunal in the case of Kenda Farben India Pvt. Ltd....... + More

Seeking assessment of Bills of Entry - seeking clearance of such goods for home consumption on payment of custom duties to be assessed together with redemption fine - import of Natural Gold Ore Concentrates - HELD THAT:- The respondent-authorities are required to assess the Bill of Entry filed by the petitioners for quantity of 16,050 grams of Natural Gold Ore Concentrates imported at Air Cargo Complex at Ahmedabad on 29.01.2014 in view of the order passed by the CESTAT reducing redemption fine to ₹ 15 lacs and penalty of ₹ 10 lacs imposed under section 112(a) of the Customs Act, 1962 in respect of the confiscated consignment. The order of the CESTAT is confirmed by this Court by dismissing Tax Appeal and therefore, the order of the Tribunal has achieved finality as no appeal is filed by the department against such order befor....... + More

Seeking permission to forthwith record their statements under Section 108 of the Customs Act, 1962 by video conferencing in investigations under Customs Act, 1962 by temporarily waiving their physical presence - HELD THAT:- In Poolpandi and Others Vs. Superintendent, Central Excise and Others [1992 (5) TMI 147 - SUPREME COURT] Supreme Court was pleased to reject the argument recorded in paragraph No.5 thereof claiming the presence of lawyer for active participation who could advise potential accused. The answer to the aforementioned objection has been given in the judgment SENIOR INTELLIGENCE OFFICER VERSUS JUGAL KISHORE SAMRA [2011 (7) TMI 910 - SUPREME COURT] wherein presence of an advocate at a visible but not audible distance was permitted which would not amount to any active participation of the advocate. The situation of Corona/COVI....... + More

Refund the excess duty paid - duty paid under protest - rejection of refund on the ground that it is beyond one year when computed from the date of reassessment of the bills of entry - Time limitation - HELD THAT:- There is no dispute that the appellant has paid excess duty of ₹ 29,57,931/- after reassessment of the bills of entry by extending the benefit of Notification No. 12/2012-CE. The refund has been rejected on the ground that it is barred by limitation - When the appellant has approached the higher forum aggrieved by the rejection of the notification benefit, it is sufficiently implied that the duty has been paid under protest. The Tribunal in the case of BAYSHORE GLASS TRADING PVT. LTD. VERSUS COMMISSIONER OF CUS., KOLKATA [2002 (7) TMI 161 - CEGAT, KOLKATA] has held that when appeal is filed against the assessment of the b....... + More

Misuse of the Special scheme to promote export - some benefits which had already accrued to exporters under the EXIM Policy were taken away. - Validity and Scope of Notifications - Power to DGFT to amend the policy - Notifications are Retrospective or prospective - HELD THAT:- In view of the decision of the Supreme Court in DIRECTOR GENERAL OF FOREIGN TRADE AND ANOTHER VERSUS M/S. KANAK EXPORTS AND ANOTHER [2015 (11) TMI 80 - SUPREME COURT], the appeal is disposed of on same terms holding that Notification No. 48/2005 dated February 20, 2006 and Notification No. 8/2006 dated June 12, 2006 cannot be applied retrospectively and they would be effective only from the dates they were issued. The Order dated 29th September 2005 passed by the learned single Judge is set aside and the Writ Appeal is disposed of in the light of the decision of the....... + More

Release of imported goods from Pakistan - rate of duty - Vires of N/N. 5/2019-Customs dated 16.02.2019 - consignments of goods from Pakistan had entered the territory of India and the bill of entry with the prescribed rate of duty was electronically generated on 16.02.2019 before impugned notification enhancing the duty @ 200% was issued in late evening on the same date - prayer for release of the imported goods upon payment of the rate of duty assigned in the bill of entry instead of the subsequently enhanced duty @ 200%. HELD THAT:- In view of the decision of the three-Judge Bench of this Court in UNION OF INDIA & OTHERS VERSUS M/S GS CHATHA RICE MILLS & ANOTHER [2020 (9) TMI 903 - SUPREME COURT], the SLP are dismissed.

Warehoused goods - goods were not cleared within the time limit stipulated in Section 48 of the Customs Act, 1962, the customs authority proposed to auction the goods - contractual relationship and contractual liability - requirement to issue waiver certificate or not - HELD THAT:- It is well settled that no Court can issue 'Mandamus' contrary to law. The statutory authority cannot be restrained from discharging its statutory functions. In the case on hand, the customs authority had issued notice on 15.09.2020 calling upon the petitioner to clear the goods. In the counter affidavit, the customs authority has pointed out that though the customs authority could have issued first notice on the expiry of the 30th day, they chose to wait for about three months before issuing the notice. Since proper response was not forthcoming from th....... + More

Seeking re-export of imported goods - petitioner was carrying with him four mobile phones, which was considered to be in excess of permissible limit - failure to make a declaration under Section 77 of the Customs Act, 1962 - HELD THAT:- Whether a specific averment has been taken either in the representation or in the affidavit filed in support of the writ petition that immediately on landing, the petitioner did make a declaration under Section 77 of the Act. The learned counsel for the petitioner is unable to draw my attention to any such averment either in the representation or in the affidavit filed in support of the writ petition. Unless the person has legal right to seek consideration of one's representation, he cannot maintain a writ of mandamus - there are no ground to grant relief - petition dismissed.

Imposition of penalty on Customs Broker - customs broker had not verified KYC and has violated Regulation 10(n) of Customs Brokers Licensing Regulations (CBLR), 2018 - HELD THAT:- A show cause notice has to be issued within 90 days from the date of receipt of the offence report. In the present case, the copy of the order passed by the adjudicating authority at Mumbai Customs is dated 29.05.2019. The same was communicated to Chennai Customs. If the said order is considered as offence report, show cause notice ought to have been issued on or before 28.08.2019. In the present case the show cause notice is dated 26.11.2019. Thus there is delay in issuing the show cause notice which is clear violation of Regulation 17(1) of CBLR 2018. The jurisdictional High Court in the case of M/S. BHUVAN SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS,....... + More

Interest on delayed Refund of SAD - case of Revenue is that the necessary documents were filed only on 16.02.2019 and from such date the refund has been granted within 3 months and therefore no interest is liable to be paid to the appellant - HELD THAT:- It is seen that refund claims were filed by the appellant in March 2014 and April 2014. The same has been sanctioned only on 10.06.2019. The department was always a party to the litigation before Commissioner (Appeals) as well as the Tribunal. When the matter was agitated by the appellant for denial of refund alleging that appellant has not complied with condition 2(b) of the notification, the Department had sufficient knowledge about the proceedings as well as the order passed by the Tribunal. Even after the order passed by the Tribunal, the department has waited for 2 years to sanction ....... + More

Star Trading House - Seeking clearance of Pigeon Peas for home consumption - valid registration of Advance Payment Certificate is there - perishable goods - change in status from free to restricted/ prohibited goods - Foreign Trade Policy 2015-2020 - HELD THAT:- Paragraph No.1.01 of chapter 1 of the FTP states that the FTP shall come into force with efect from the date of notifcation and shall remain in force upto 31.03.2020, unless otherwise specifed as stated; the said policy now stands extended upto 31.03.2021. Paragraph No.1.05 relates to transitional arrangements and clause (b) thereof states that in case of change of policy from 'free' to restricted / prohibited / state trading or otherwise regulated, the import / export already made before the date of such regulation / restriction will not be afected. It further states that....... + More

Recovery of money in disguise - inaction of State to recover - whether writ of mandamus will lie in resolving a private dispute, intending to recover money in disguise alleging State inaction, already lent out to the beneficiary/erstwhile lessees/proforma respondent nos. 1 and 2 tea garden companies, when affidavit of report of debt for and on behalf of creditors/writ petitioners had already been filed before the Official Liquidator pursuant to a winding up order? HELD THAT:- The execution of fresh lease was intended to be stalled pending realization of unpaid amount, given as loan amount to the erstwhile lessees in connection with the transaction already entered into between the parties - Without any controversy, writ petitioners are neither assignee, nor representative in interest of the erstwhile lessees being proforma respondent nos. ....... + More

Approval of scheme of arrangement - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- Considering the entire facts and circumstances of the case and on perusal of the Scheme, the documents produced on record, the representation made by the Regional Director, Registrar of Companies, Official Liquidator and Income Tax Authority and the reply thereof by the petitioner companies, this Tribunal is of the opinion that the requirements of the provisions of Sections 230 and 232 of the Companies Act, 2013 are satisfied. The reply given by the petitioner companies to the representation of the Regional Director, Registrar of Companies, Official Liquidator and Income Tax Authorities satisfies the observations of the Regional Director, Registrar of Companies, Official Liquidator and Income Tax Authorities. The Scheme appears to be genuine and bona fide and in the interest of the shareholders and creditors. The scheme of arrangement sanctioned - Application allowed.

Oppression and Mismanagement - basic bone of contention in the application is that the deceased father of the Petitioner was illegally removed from the office of the Managing Director on 3rd July, 1986 by father of the Respondent No.3 and late Pramod Kumar Roy and since then the company is functioning without Managing Director - HELD THAT:- The original case [CP No.80/2000] T.P.No.26/GB/2016 filed by Late Kamakhya Kumar Roy under Section 397/398 of the Companies Act, 1956 (Sections 241-242 of the Companies Act, 2013) needs to be heard without further loss of time. We do not find any reason not to substitute Shri Sajay Kumar Singh in place of his deceased father to continue this case filed under Section 397/398 of the Companies Ac, 1956. This Tribunal is also having power to waive all or any of the requirements specified in Clause (a) or C....... + More

Seeking permission to avail loans and credit facilities to carry on the business of the Applicant - covid-19 lockdown situation - HELD THAT:- It is common knowledge that the whole world is still reeling under the adverse effects of the pandemic for over a year. The pandemic undeniably has had adverse effect on all walks of life including trade, commerce and business operations. It would accordingly not be unusual to assume that the impact thereof has also been felt by the Company. As can be discerned from the earlier orders of the CLB as well as of the Hon’ble High Court of Bombay, the interest of the Company has to be of paramount consideration and needs to be protected. The CLB as well as the Hon’ble High Court have at different times have felt the need for infusion of funds into the Company, so that the operations of the Co....... + More

Inspection of the books of accounts and other statutory records of the Petitioner company - whether the Registrar would have to first call upon the Petitioner to give an explanation and also provide them a reasonable opportunity of being heard before the Registrar, before issuing show cause notices? - section 206(5) of the Companies Act, 2013 - HELD THAT:- There is no doubt that under Section 207 of the Companies Act, 2013, statements of the Directors of the company have been recorded. However, under these circumstances the Petitioner ought to be given a reasonable opportunity of being heard - In the present case, preliminary findings were issued in September, 2020, and owing to the belated reply, the authorities have proceeded further, to issue the said show cause notices and it is not clear if the reply submitted was considered or not. ....... + More

Winding up of Company - it was a specific case of the appellant, that on account of the defective material supplied by the respondent, the appellant had suffered huge losses and as such, it was the appellant who was entitled to receive the damages from the respondent - satisfaction of respondent’s claim to the extent mentioned in the order impugned in the appeal - HELD THAT:- It is therefore well settled, that if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. It is equally well settled, that where the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. It is equally settled, that the principles on which the court acts are first, that the defence of the company i....... + More

Approval of scheme of amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From a perusal of the material brought on record, it appears that the Scheme of Amalgamation is fair, reasonable and is not detrimental to the Members or Creditors or contrary to public policy. Further, as per the Petition, the Scheme in question will bring about operational synergies of the combined entity, have a more efficient and cost-effective management system in view of consolidation of operations Consolidation and Synergies in business operations; Increase in net worth of the Transferee Company and will facilitate effective and fast mobilization of financial resources for meeting its increased capital expenditure for future expansion, etc. The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 ha....... + More

Transfer of proceedings to the National Company Law Tribunal - whether the provisions of the Sick Industries Companies Act (Special Provisions) Repeal Act, 2003, as amended by Section 252 of the Insolvency and Bankruptcy Code, 2016 with effect from 01.12.2016 - the date notified for the purpose of Section 4(b) of the Sick Industries Companies Act (Special Provisions) Repeal Act, 2003, can be transferred to the NCLT, at this stage? - HELD THAT:- Since the final decision of the matter, either at the hands of this Court or at the hands of the NCLT, even if the proceedings were to be transferred to the NCLT, may take considerably long period from now, no useful purpose will be served by continuing with the aforesaid blanket Status Quo order, which is continuing in this Letters Patent Appeal for the last more than ten years, which, in turn, ha....... + More

Auction - 5670 kilograms of copper ingots - appellant was the highest bidder - was not informed whether he is the successful bidder and demanded return of EMD - appellant thus not intending to proceed with the sale and requested for return of EMD - inconsistent stand of appellant - HELD THAT:- It can be seen that the appellant is not having a consistent stand before the Court. By Annexure-R3 he requested for return of EMD on the ground that he has not been intimated as to whether he is the successful bidder. After receiving Annexure-R2 communication from the Official Liquidator regarding confirmation of sale also the appellant by Annexure-R4 informed the Official Liquidator that he is not intending to proceed with the sale and requested for return of EMD. The appellant filed Company Application No.75/2020 to set aside Annexure- R6 letter ....... + More

Transfer of shares - Winding up of company or not - appellant contended that in the absence of requirements contemplated under Section 397 of the Companies Act, 1956, the Company Law Board has committed an error in passing such an order (for transfer of shares) in view of the fact that there was no circumstances established for winding up of the company - HELD THAT:- This Court is of the opinion that when the provisions of the Statute contemplate certain requirements and ingredients then such requirements are to be established by the parties who approached the Court and in the absence of any proof to that effect, relief cannot be granted merely on the ground that there was a dispute existing between the parties. Mere dispute is insufficient to pass an order to transfer the shares. The dispute must result in winding up of the Company and s....... + More

Scheme of Amalgamation - seeking to dispense with the convening and holding of the meeting of Equity Shareholders of the Applicant Companies and Secured Creditors of the Applicant No. 2 and Unsecured Creditors of the Applicant No. 1 - seeking direction to convene the Meeting of Unsecured Creditors of the Applicant No. 2 - Sections 230 & 232 of the Companies Act, 2013 - HELD THAT:- The Companies have followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditors/Chartered Accountants of the Company have also issued respective Certificates by inter-alia certifying the details of shareholders, creditors, and compliance of accounting treatment as prescribed U/s. 133 of the Companies Act, 2013 with reference to the Scheme in ....... + More

Sanction the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013, r/w Companies (CAA) Rules, 2016 - HELD THAT:- In terms of sub-section (3) of Section 232 of Companies, the Tribunal is empowered to sanction the scheme of amalgamation, if it is satisfied that sub-section (1) and (2) of the above section, however, subject to filing a Certificate by the Company's Auditor with Tribunal to the effect that the accounting treatment, if any, proposed in the Scheme of Amalgamation is in conformity with the Accounting Standards prescribed under Section 133, etc. It is a settled position of law that any Scheme of Amalgamation or Arrangement, under the extant provisions of Companies Act, would not contemplate to waive any liability or legal action for any violation of provisions of Companies Act, so as to prevent Statutory Auth....... + More

Oppression and Mismanagement - Validity of proceedings of the sixth meeting of the Board of Directors of TATA Sons Limited held on 24.10.2016 in so far as it relates to the removal of Shri Cyrus Pallonji Mistry (CPM) - seeking restoration of position of CPM as the Executive Chairman of Tata Sons Limited and consequently as a Director of the Tata Companies for the rest of the tenure - seeking to declare as illegal the appointment of someone else in the place of CPM as Executive Chairman - seeking restraint on Shri Ratan N. Tata (RNT) and the nominees of Tata Trust from taking any decision in advance - seeking restraint on the Company, its Board of Directors and Shareholders from exercising the power under Article 75 of the Articles of Association against the minority members except in exceptional circumstances and in the interest of the Co....... + More

Concession Agreement - Operation of rapid metro link - 'debt due' as per the financing documents in terms of their respective Concession Agreements - whether the consequences envisaged in the consent order of the High Court dated 20 September 2019 can stand obviated? - HELD THAT:- At the very outset, it is important to note that the FIR in respect of IL&FS group of companies was lodged on 6 December 2018. The termination notices of June and August 2019, and the institution of the writ proceedings, took place thereafter. Evidently the appellants on the one hand, as well as HSVP/HMRTC on the other, were conscious of the developments which were taking place in respect of the IL&FS group of companies in the proceedings before Justice D K Jain on 19 August 2019. When the consent order was passed before the High Court, HSVP was ....... + More

Seeking appointment of Arbitrator so as to to constitute an Arbitral Tribunal to adjudicate upon the disputes that have arisen between the petitioner and the respondent - HELD THAT:- A perusal of the arbitration agreement indicates that the arbitration shall be held at Mumbai and be conducted by three arbitrators. For the purpose of appointment KIVF I, KEIT and KIVL are to jointly appoint one arbitrator and the promoters of Indus Biotech Private Limited, to appoint their arbitrator. In the second agreement dated 20.07.2007, ‘KMIL’ as the Investor is on the other side. In the third agreement dated 20.07.2007, ‘KIVFI’ as the Investor is on the other side and in the fourth agreement dated 09.01.2008 it has the same clause as in the first agreement. The two arbitrators who are thus appointed shall appoint the third arb....... + More

Enlargement on Bail - Intermediate business on the basis of bill of lading is permissible - bail sought on the old age of accused and also that he has medical ailments - HELD THAT:- The sum and substance of the outcome of the investigation conducted in the matter and the facts mentioned in the complaint for prosecution are that concerned Companies were engaged in fraudulent merchantine trade and caused wrongful loss to the Public Sector Bank to the tune of ₹ 7820 Crores approximately applying different modus operandi including siphoning of Bank funds through merchantine trade; falsification of financial statement of the Companies involved in the matter by not showing true and fair views. So far as the order granting interim protection passed in favour of Sunil Verma, Anoop Kumar Wadhera as well as Vikram Kothari is concerned, if the....... + More

Oppression and mismanagement - non-repayment of unsecured loan to the Appellant - utilisation of rights shares - HELD THAT:- It is a fact that the Appellant has not filed any document regarding Tally Data and the statement etc. before the learned NCLT. In view of non-providing the documents before the learned NCLT, the learned NCLT had no opportunity to look into the documents and deal with the aspects. It appears that the Appellant for the first time filed these documents along with I.A. No. 237 of 2021 before the Tribunal. Since the Appellant alleging that the amounts have been credited into the Respondent No. 1 Company and later on withdrawn by the Respondents. Sitting in the Appellate Jurisdiction, we cannot decide the merits since the matter is sub judice and seized of by the learned NCLT. We are also of the view that the petition wa....... + More

Seeking grant of regular bail - siphoning of funds - economic offences - Sick person or infirm person or not - interim bail already granted - HELD THAT:- Merely because the petitioner is on interim bail, it cannot be held that the petitioner’s prayer seeking the grant of regular bail cannot even be considered till he surrenders for the very prayer made by the applicant seeking the grant of regular bail implicitly in the facts and circumstances of the instant case takes into account that the applicant was granted interim bail after he had been arrested on 02.12.2019 - in the facts and circumstances of the instant case, the petition filed by the petitioner seeking release on regular bail in terms of Section 439 of the Cr.P.C., 1973 is maintainable. Sick person or infirm person or not - HELD THAT:- This Court is of the considered view ....... + More

Seeking of Amalgamation Scheme - seeking to dispense with the convening and holding of the Meeting of Equity Shareholders of the Applicant Companies and Secured Creditors of the Applicant No.2 and Unsecured Creditors of the Applicant No.1 - seeking direction to convene the Meeting of Unsecured Creditors of the Applicant No.2 etc. - HELD THAT:- Various directions regarding holding and convening various meetings issued - various directions regarding issuance of notices of the meetings, also issued. Application allowed.

Eligibility of promoter to participate in the Resolution Process - an advertisement in Form-G was issued on 17.02.2020 inviting EOI to submit Resolution Plan for the Corporate Debtor - Section 29A of the Code - HELD THAT:- It is not in dispute that the Corporate Debtor came within the definition of Medium Enterprise w.e.f 01.07.2020 by virtue of the relevant notification. Thus, the Applicant as the promoter (suspended Director) of the Corporate Debtor becomes a promoter of a Medium Enterprise w.e.f. 01.07.2020. Admittedly, on 01.07.2020 the CIRP had not come to an end. The Notification dated 26.06.2020 became effective within the currency of the CIRP process. The expression ‘at the time of submission of the resolution plan’ appearing in ‘clause (c)’ of section 29A of the Code came to be inserted w.e.f. 06.06.2018. ....... + More

Approval of Resolution Plan - grievance of the Appellant is that the Appellant is a Financial Creditor of the Corporate Debtor who filed claim before the Resolution Professional but the same was rejected on the ground of delay - HELD THAT:- The IBC was enacted to consolidate and amend the laws relating to reorganization and insolvency resolution of Corporate Persons, Partnership Firms and Individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of all stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India and for matters connected therewith or incidental thereto. The IBC has various provisions which are time bound. Stakeholders in IBC cann....... + More

Extension of Liquidation Proceedings by one year in terms of Regulation 44(2) of the IBBI (Liquidation Process) regulations, 2016 - HELD THAT:- The assets of the Company have not been liquidated yet as the land on which the Hotel building is situated does not belong to the Company and the main entrance area of the Hotel belongs to a third party. It is further submitted that more time will be required to appoint an amin for the demarcation of the assets of the Company and that of the other parties, as was suggested by the sole secured creditor in the 2nd Stakeholders Consultative Committee Meeting - That additional time is also required to file as application Regulation 38(1) of the Liquidation Process Regulations. Liquidation is required to be completed within 1 year. Liquidation order was passed on 06/09/2019. It should have been complet....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Contract of Guarantee - bankruptcy process against the Respondents/Personal Guarantors - Section 60 (2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Financial Creditor had filed the petition under Section 7 of IBC against the Corporate Debtor and Corporate Debtor is in Liquidation. The Liquidation proceedings is going on - Now the Financial Creditor has filed application to proceed against the Guarantors to the Corporate Debtor in Liquidation. Hence it is essential to bring here the provisions of Section 95 of IBC Part III, Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms for disposal of this I.A. It is clear that if the FC desires to file an Application Initiating Insolvency Resolution P....... + More

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - HELD THAT:- The petitioner has filed all the documents and the petition is complete in all respect. Service is complete and the default occurred on 16.08.2019 - The Adjudicating Authority is only required to consider whether there is any default and the debt is due and payable. In the instant case, the applicant has placed on record enough documents evidencing the default and hence, the present application deserves to be admitted. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable....... + More

Seeking extinguishing of demand towards Central Sales Tax and VAT - Extinguishing of demand prior to 20th September, 2018 - HELD THAT:- In the approved Resolution Plan, it was clearly stated that barring aside the claims admitted and forming part of the Resolution Plan any other claim and/or demand prior to the effective date shall stand extinguished. The Hon’ble Supreme Court of India in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] upholding the constitutional validity of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 has held that Ultimately it is the commercial wisdom of the requisite majority of the CoC that must prevail on the facts of any given case, which include distribution of assets. It is,....... + More

Dissolution of the Corporate Debtor - section 54 of the Insolvency and Bankruptcy Code, 2016 read with regulation 45(3) of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is informed by the liquidator that he has not formed the Stakeholders’ Consultation Committee and no Stakeholders’ Consultation Committee meeting has taken place during the liquidation period. The reason for not forming/or conducting the meeting could not be clarified by the liquidator, when 5 Operational Creditors are there besides the promoters/ shareholders of CD. It is also reported, during the hearing that, a Fix Deposit of ₹ 5,25,000.00(Face value) with interest accrued therein of the CD lying with HDFC Bank even the Bank Guarantee/claim period of Letter of Guarantee (LG) is over. This deposit give....... + More

Seeking modification of list of stakeholders and incorporate claims filed by the financial stakeholders - Section 60(5) (c) read with Regulation 31(3) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- We are not much convinced about the reasons for delay in filing the claim, as the clam is filed around 14 months after i.e. on 31.12.2020, when the last date of filing the claim was 19.10.2019. Moreover, the claimant is the same FC which had filed Application under Section 7 of IBC. The reason mentioned by the Liquidator i.e. due to Covid period lockdown, the liquidation process could not be completed is not convincing. The fact is that the Covid Pandemic Lockdown started on 23.03.2020 i.e. after six months of liquidation order passed and no claim is filed during that six months also. Liqui....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues or not - Operational Creditor - existence of debt and dispute or not - Time Limitation - HELD THAT:- In the case of Babulal Vardharji Gurjar Vs Veer Gurjar Aluminium Industries Pv. Ltd. & Anr. [2020 (8) TMI 345 - SUPREME COURT] it was held that an application under the Insolvency and Bankruptcy Code seeking CIRP in respect of the Corporate Debtor having been filed after a period three years from the date of default is barred by limitation. The petition dismissed as being barred by limitation.

Applicability of Resolution Plan - creditor including the Central Government, State Government or any local authority - applicability of plan once it is approved by an adjudicating authority under subsection (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 - amendment to Section 31 by Section 7 of Act 26 of 2019 - clarificatory/declaratory or substantive in nature? - whether after approval of resolution plan by the Adjudicating Authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the Corporate Debtor, which are not a part of the Resolution Plan approved by the adjudicating authority? HELD THAT:- One of the principal objects of I&B Code is, providing for revival of the Corporate Debtor and to make it a goi....... + More

Seeking directions to NCLAT, Delhi, to ‘Hear and Decide’ the petitioner’s representation / appeal on ‘Legal interpretation’ and ‘Legal procedures’ issues, as per relevant laws and rules - case of the Petitioner is that the Insolvency and Bankruptcy Code, 2016, does not permit NCLAT to direct the filing of written submissions and judgments in a matter, however the NCLAT has vide the impugned orders, directed for the same. HELD THAT:- The NCLAT being the duly constituted Appellate Tribunal, under the IBC, is free to regulate its procedure and the manner in which it wishes to hear matters, including issuing of directions for filing of written submissions and judgments. These procedural issues are to be regulated by the NCLAT on its own. This Court does not deem it appropriate to interfere with the sa....... + More

Approval of resolution plan - main objection of the Applicants is that the Resolution Applicant intends to change the main business of the ‘Corporate Debtor’ form printing business to running Data Centers - change in the nature of the business of the ‘‘Corporate Debtor’’ is permitted or not. Whether the Resolution Plan approved under Section 31 by the Learned Adjudicating Authority is in contravention with the scope and objective of the Code which is ‘Resolution’, ‘maximization of value of assets of the ‘Corporate Debtor’’ and ‘promoting entrepreneurship’, ‘availability of credit and balancing interest of all stakeholders’? HELD THAT:- The Jurisdiction of NCLAT being in continuation of the proceedings envisages that any Appeal against an Order ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - service of notice - Operational Creditors - pre-existing dispute or not - HELD THAT:- The notice under Section 8 was sent on 22nd May, 2019. Before that on 7th November, 2017 there is email (Annexure A31) dated 09th November, 2017 at page 216 which is stated to have been sent by CEO of the Corporate Debtor to the Operational Creditor - There are notices at Annexure A33 and A34 which according to the Appeal were sent by Advocate of Corporate Debtor in March and April, 2018 in which notices, the Corporate Debtor raised various issues including that Operational Creditor failed to complete the project in time and whatever Operational Creditor worked-the project was found not working. Thus there is already pre-existing dispute between ....... + More

CIRP process - possession of Land during the CIRP process - Restraint on Respondent from taking any steps in further of the notice - termination of lease agreement till the completion of the corporate insolvency resolution process - co-operation in concluding the corporate insolvency resolution process. HELD THAT:- R1’s action in seeking possession of the leased land, during the currency of CIRP, is hit by Section 14(1)(d) of the Code. The judgement of the Hon’ble Supreme Court in Rajendra Bhutta’s case [2020 (3) TMI 34 - SUPREME COURT] is the comprehensive answer to all the contentions raised by R1 where it was held that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property “occupied”, does not refer to rights or interests created in property but only actual physical occupation of the property. The dismissal of the Writ Petition filed by R2 does not have any bearing on these proceedings - application allowed.

Attachment order in respect of the properties of Corporate Debtor - conflict between the IBC and PMLA or not - It is argued that Section 238 of IBC cannot preclude action under PMLA and because of this Section 32A of IBC was required to be introduced and the amendment does not affect action pre approval of resolution plan - HELD THAT:- The Application under Section 7 of IBC came to be admitted on 16.07.2018. It appears that the Resolution Professional approached the Appellant for release of the Provisional Attachment of the assets and properties of the Company and handover the charge to the Resolution Professional but this was not accepted and ultimately the Resolution Professional moved Ld. Adjudicating Authority (NCLT, Mumbai Bench, Mumbai) which after hearing the parties passed the present Impugned Orders. Power of Adjudicating Authori....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - assignment of the debt of the Corporate Debtor - legal or enforceable and recoverable claim to initiate any present proceeding or not, since cause of action accrued on 23.06.1998 - applicability of section 25(3) of the Contract Act - whether the said section is an exception to the provisions of Section 18 of the Limitation Act? HELD THAT:- The date of default mentioned in the present Petition is 1998 (23/06/1998 as per the Corporate Debtor) and the Petition has been filed on 04/03/2019, after a period of more than 20 years - Since the Assignment Agreement dated 27/09/2013 is much beyond 3 years after the date of default, the contention that Section 25(3) of the Contract Act would be an exception to the provisi....... + 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 - Time Limitation - HELD THAT:- The CD has defaulted in making repayment of credit facilities to the Petitioner Bank and the date of default is 30.03.2018. The statement of accounts as on 19.12.2019 along with the Banker's Book Evidence Certificate annexed with the Petition confirms the default is ₹ 11,88,32,338.00. The petitioner Bank has filed the petition within the period of limitation, as the default has occurred as on 30.03.2018 and the application has been filed on 08.01.2021. The acknowledgment of debts have been submitted by the CD to the FC on 27/01/2015, 28/06/2017 and 19/07/2019. Charges have been filed with ROC on 25/03/2013 and thereafter charges ha....... + More

Approval of Resolution Plan - Section 30 (6) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39 (4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- Upon perusal of the approved Resolution plan, the Bench has observed that out of ₹ 150.70 crores of total Debt amount to various creditors, stakeholders the SRA proposed to pay ₹ 30.07 crores as the Final Resolution Amount i.e. approx. 20% of the total Resolution debt amount. Even out of this ₹ 12 crores will be generated through sale of assets of Non-Core Business of the CD thereby the SRA will bring in only ₹ 18 crores i.e 12% of the total outstanding Resolution Debt amount or approx. 60% of the Resolution Plan value. In case the SRA could not realise, monetise the said amount of ₹ 12 crores, how ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - amount paid towards interest as on 31.03.2019 - time limitation complied or not for amount paid towards interest - applicability of section 18(1)& 19 of Limitation Act, 1963 - HELD THAT:- In the present case evidently there has been payment of TDS on interest on 31.03.2014, an amount of ₹ 60,493/- was paid on 31.03.2017, an amount of ₹ 2,40,000/- was paid towards TDS on interest on 31.03.2018, and finally as last tranche of payment of ₹ 60,493/- as TDS on interest was made on 31.03.2019. If the date of default is construed as 1.01.2015, then the three year limitation would end on 01.01.2018, but since the interest was made within three years of limitation period and such payments continue....... + More

Right of respondent on common road - disturbance or hindrance to the Resolution Professional or to any of his staff or security personnel in any manner caused or not - HELD THAT:- Schedule -1 ‘property details and position’ which is filed in the Reply Affidavit at page 42 that site map has been filed with shows that on the south side of the plot there is a common road, this fact has not been denied by the Appellant. This fact has also been mentioned in the Title Deed, so taking this fact and all the submissions advanced by the parties, the Ld. Adjudicating Authority has rightly pass the impugned order. The proceeding before the Adjudicating Authority and this Tribunal is summary in nature as to follow strict time line. The Learned Counsel for the Appellant have failed to make out any ground and the finding recorded by Ld. Adjudicating Authority - Appeal dismissed.

Liquidation of Corporate Debtor - liquidation sought as no Resolution Plan was receive - Section 33(1) of the IBC 2016 - HELD THAT:- On 02.02.2021 pronouncement of orders was deferred upon request of a prospective Resolution Applicant viz. Mantena Constructions Pvt Ltd, who had filed application expressing its interest in putting up a Resolution Plan and requesting certain details from the RP in furtherance thereof. Orders were passed in permitting the Applicant therein to access the details. The RP was also directed to provide the required information. However, on 23.03.2021 the Applicant (Mantena Constructions Pvt Ltd) submitted that upon verification of the information made available, it was no longer interested in submitting a Resolution Plan. Thereafter, orders in MA No. 227 of 2018 & MA No. 350 of 2018 were reserved and are bein....... + More

Seeking release of public amenities such as road, garden, STP plant, club, electricity grid, etc. from the purview of attachment order - property involved in money- laundering - Proceeds of crime - HELD THAT:- The petitioners are having remedy to appear in the proceedings pending before the adjudicating authority and they can put their claim before the adjudicating authority. The order passed by the adjudicating authority is appellable u/s. 26 of the PMLA Act, therefore, the petitioners are not remedy-less against the impugned order. They are having alternative and efficacious remedy. The PMLA Act is a complete code in itself. This petition is disposed of with liberty to the petitioners to remedy available to them in law.

Seeking enlargement on Bail - Money Laundering - fraudulent transfer of funds abroad - HELD THAT:- As it appears from record, the applicant has floated various bogus entities, several money transactions/transfers, have been traced between the companies/firms owned by applicant and accused companies. Prima-facie, evidence suggests, applicant was managing and controlling financial affairs of accused and beneficiary companies. Whereas, one co-accused was an employee of a beneficiary company and another, was director. Besides, evidence suggests, both co-accused had joined the investigation; soon after they were summoned and co-operated investigation. Reply fled by the Enforcement Directorate suggests, that the investigation is not complete and non-co-operation of the applicant has resulted into lack of financial information available with the....... + More

Attachment of various property belonging to the petitioner - Applicability of PML Act to the erstwhile State of Jammu and Kashmir - action of the Authorities under the PML Act - HELD THAT:- It can be seen that the proceedings initiated against Ahsan Ahmad Mirza were challenged by him in a petition AHSAN AHMAD MIRZA AND OTHERS VERSUS ENFORCEMENT DIRECTORATE & ANOTHER [2019 (10) TMI 1408 - JAMMU AND KASHMIR HIGH COURT], which petition was, however, dismissed by a Coordinate Bench of this Court vide Judgment and Order dated 15.10.2019. Counsel for the parties state that a Letters Patent Appeal is filed and is pending before a Division Bench of this Court. Having gone through the writ petition as also the Judgement of the Coordinate Bench in Ahsan Mirza’s case, it can be seen that some of the issues raised by the petitioner in the p....... + More

Rejection of prayer of applicant to grant custody of respondent Nos.2 and 3 for further period of 7 days for the purpose of investigation - Section 420 of the Indian Penal Code - HELD THAT:- The respondent Nos.2 and 3 were in custody of the applicant from 6 pm of 27th January 2021 to 2nd February 2021. According to this Court, five complete days period for confronting the respondent Nos.2 and 3 with the alleged devices is sufficient. During the course of arguments, the learned Special P.P. produced a file of investigation carried out by the Investigating Agency containing statements of the respondent Nos.2 and 3/accused allegedly recorded under Section 50 of the said Act. Even if the respondent Nos.2 and 3 are remanded to judicial custody, the Investigating Agency can confront them with the aforesaid documents in jail, after taking necess....... + More

Extension of judicial custody of both the accused - alleged crime of money laundering done by both the accused - HELD THAT:- It is proceeds of crime which construes an offence of money laundering under Section 3 punishable under Section 4 of P.M.L.Act, if such a person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following process or activities connected with proceeds of crime namely concealment or possession or acquisition or use or projecting as untainted property or claiming as untainted property in any manner whatsoever, the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession o....... + More

Remittance of huge money abroad - fake/forged bill of entries - Accusation of committing offences punishable u/s 3 of the Prevention of Money Laundering Act - HELD THAT:- It is a matter of fact that the offence pertains to the year 2014 and as of now, trial has not proceeded. There is no any possibility or likelihood of completion of trial in near future or at least say 3 years. There is no disagreement on this fact situation. Secondly, though 7 to 8 years have passed, there is no any possibility of completion of investigation even in near future or say at least for 3 to 5 years. These facts are not in dispute since the prosecution agency was not in a position to state at bar as to what further period would require to complete the remaining investigation in the offences alleged against private respondent and other co-accused persons - Sin....... + More

Provisional attachment order - money laundering - siphoning of funds - scheduled offence as per the Schedule-A of the Act or not - reason to believe present or not - HELD THAT:- Looking to the fact that presently the petitioner has only been served with a show cause notice in which we are told 20th April, 2021 is the next date fixed and the fact that the order of attachment is provisional in nature which is valid for a period of 180 days only, we do not consider it to be an appropriate case to pass any interim order at this stage particularly when the laundering of 43.69 crores of the amount is not in dispute which in all fairness ought to be returned to the public body i.e., JKCA. The petitioner, in addition, is faced with an order of dismissal of an identical writ petition and as such, has to overcome all the findings returned and the r....... + More

Maintainability of petition - provisional attachment order lost its force with the expiry of 180 days - writ petition having been filed much beyond 180 days commencing from 20th January, 2020 - HELD THAT:- Pendency of the writ petition will, however, not be an embargo on the respondents in proceeding with the complaint no.1262 of 2020 made under the provisions of Section 5(5) of PMLA as the same will not amount to any coercive step in terms of the provisional order of attachment. The matter can be more effectively heard after calling for affidavits - Let affidavit-in-opposition be filed within a period of four week from date. Reply, if any, thereto be filed by two weeks thereafter.

Seeking grant of Bail - commission of economic offence - predicate or scheduled offence - burden to prove guilty - whether, in view of amendment to Section 45 of PMLA, the twin conditions stipulated therein stands revived post decision of Hon’ble Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India [2017 (11) TMI 1336 - SUPREME COURT]? - HELD THAT:- The question of the constitutional validity of Section 45 of PMLA was dealt with by Apex Court before amendment in the case of Nikesh Tarachand Shah. The grounds of challenge were that, Section 45 of the Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. The Apex Court enumerated illustrations while examin....... + More

Money laundering - proceeds of crime - tainted money - amount found in a car outside his house - HELD THAT:- For attracting the penal provisions of the PML Act, the accused should have projected the proceeds of a crime as untainted money. In this case, the sum of ₹ 50,00,000/- as long as it was in the hands of Padmanabhan Kishore (A2) could not have been stated as a tainted money because it is not the case of the CBI in C.C.No.3 of 2013 that Padmanabhan Kishore (A2) had mobilised ₹ 50,00,000/- via a criminal activity. The sum of ₹ 50,00,000/- became the proceeds of a crime only when Andasu Ravinder (A1) accepted it as a bribe. Even before Andasu Ravinder (A1) could project the sum of ₹ 50,00,000/- as untainted money, the CBI intervened and seized the money in the car on 29.08.2011. The prosecution of Padmanabhan Kishore (A2) under the PML Act, is misconceived - Petition allowed.

Provisional attachment with respect to the four sugar mills of the petitioner - Right to property - violation of the provisions of Section 5 of PML Act - HELD THAT:- In the instant case, assailing the provisional attachment order, no ground has been taken that the order has been passed by an incompetent authority or by an authority having no jurisdiction. In this view, it is not a case of lack of jurisdiction. Further, in this writ petition, the vires of the Act has not been challenged. In this case, Right to Property is involved. Right to property is a constitutional right, which is always subject to restriction imposed by law. Further, the Right to Property has not been included under Part-III of the Constitution of India, which deals with the Fundamental Rights. Article 300-A is under Chapter IV of Part-XII of Constitution of India and....... + More

Permission for withdrawal of application - second application seeking grant of interim bail on medical grounds - reports given by the Doctors, posted in jail was forged and misused by appellant - HELD THAT:- This Court finds that the Senior Medical Officer, in his report dated 15.08.2020, has specifically opined that the accused-applicant was required to be worked at for surgery since surgical issue had got deteriorated which means that accused needed urgent surgery at a High Referral Hospital. This report became the basis for enlarging the accused-applicant on interim-bail by the Delhi High Court vide order dated 17.09.2020 as well as the order dated 14.08.2020 passed by this Court. The Doctors, posted at the Jail Hospital, are required to remain careful, while issuing medical certificates, which may be misused by an accused. In the pres....... + More

Validity of imposition of “debit-freeze” of the bank accounts - Attachment of property in money laundering - conspiracy to create false and forged documents - cheating the Government of India by transferring of ₹ 569 crores in foreign exchange outside India to Singapore, Hongkong and China - search and seizure - HELD THAT:- The scheme of the Act provides for an initial attachment of the proceeds of the crime in the possession of any person for an initial period of 180 days by the Director or any other Officer not below the rank of Deputy Director Authorised by the Director, for the purposes of Section 5 of the Act. This attachment can be made only when the said officer records, in writing, his reason to believe that such a person is in possession of any proceeds of crime and that such proceeds of crime are likely to be c....... + More

Seeking grant of Bail - corruption and abuse of high public office - HELD THAT:- The Hon'ble Supreme Court of India in the decision reported in [2019 (9) TMI 286 - SUPREME COURT], has considered the scope of bail in economic offences involving corruption and abuse of high public office and in paragraph nos.18 to 23 has observed that ''basic jurisprudence relating to bail is that bail is the rule and refusal is the exception, etc., Though gravity of offence is an important factor and economic offences as in present case are considered grave, consideration for grant of bail would depend upon facts of each case and taking into consideration all the facts and circumstances, has enlarged P.Chidambaram, on bail, subject to certain conditions'. Granting of bail is a discretional relief and it is a well settled position of law tha....... + More

Seeking grant of Anticipatory Bail - transit bail - fake and fraudulent transactions - breach of conditions of agreements entered into for sale of land to poor people or employees - Economic Offences - HELD THAT:- Reliance placed in the case of P. CHIDAMBARAM [2019 (9) TMI 286 - SUPREME COURT] where it was held that in a case like a Economic Offences, the Court should not grant anticipatory bail and if the anticipatory bail is granted, the investigation may be frustrated. In view of the judgment of the Hon’ble Supreme Court, the alleged offence though non-bailable, the same is punishable with 7 years of imprisonment and even under PML Act, the punishment is 7 years, but the alleged offences committed amounts to cheating and fraudulent transaction from initial stage. They planned and prepared documents dealing with sale and M/s. SDL ....... + More

Grant of Anticipatory Bail - accumulation of huge wealth disproportionate to known sources of income - proceeds of crime - HELD THAT:- Though the respondents have made grievance that they have not been able to get desired cooperation from the petitioners, yet it is on record that they have attended the investigation as and when required by respondent No.2. The grievance of respondent No.2, is however, that though the petitioners are complying with the directions and attending the investigation, yet they are not disclosing the information with regard to various documents and the properties. Be that as it may, ECIR in the case was registered on 21.02.2020 and it was with respect to the ‘proceeds of crime’ unearthed by ACB after thorough investigation. More than one year has passed and the investigation in the offences under PMLA....... + More

Seeking grant of Bail - Scheduled Offence - Explanation inserted to Section 44(1)(d) of PMLA - it is submitted that once the Scheduled Offence lodged against the Applicants is compromised/compounded by the Complainant therein, the structure of the present crime registered by ED falls on ground, as it does not survive and is non-est - HELD THAT:- It is the settled position of law by a catena of judgments that, a statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according to the intent of them, that make it and the duty of judicature is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents ....... + More

Grant of Regular Bail - allegation of deliberately manipulating/falsifying stocks, inventories - tampering of evidence - influencing the witness - HELD THAT:- The petitioner in the instant case is in custody since 27.10.2020. Nothing has been placed on record to show that the petitioner is a flight risk and according to the counsel for the petitioner the petitioner was granted permission to go to Sri Lanka for two weeks and thereafter he returned, the fact which has not been denied by the respondent. Tampering - HELD THAT:- The evidence is documentary in nature and the documents and digital evidence is in the custody of the prosecuting agency. Influencing the witnesses - HELD THAT:- No material has been placed on record by the respondent to show that anyone on behalf of the petitioner had tried to influence the witness of this case in any....... + More

Maintainability of petition - availability of alternative remedy - Money Laundering - search and seizure proceedings - confiscation of properties - It is the case of the petitioners that upon drawing the panchnama, the Assistant Director issued a letter dated 22.7.2020, intimating the petitioners not to part with any of the noted bank accounts, properties and insurance policies named therein, without prior sanction and further not to withdraw, renew or deal with the same in any manner without prior permission of the respondent No.2 - HELD THAT:- The judgment of the co-ordinate bench in the case of JJIGNESH KISHOREBHAI BHAJIAWALA VERSUS STATE OF GUJARAT AND ORS. [2017 (7) TMI 1377 - GUJARAT HIGH COURT] clinches the issue. The said writ petition was dismissed by this court, inter alia, holding that the PML Act was enacted to prevent money l....... + More

Validity of provisional attachment order - proceeds of crime - unauthorised payments for obtaining the coal blocks allocation - allegations against her in the PAOs date back to the time when she was a PR professional i.e., sometime between 2007-08 to 2015 when the FIR was lodged - HELD THAT:- The manner in which all the liquid savings of the Petitioner have been completely frozen appears completely unjustified, especially when the allegations against the Petitioner are merely in the realm of speculation, at this stage. The letter dated 22nd January 2021 issued to M/s. Centrum attached the Petitioner’s entire deposits to the tune of ₹ 6 crores. Coupled with the assets attached in the PAO, the total assets attached are cumulatively worth 9,23,51,787/- crores, when admittedly, even as per the ED’s own case, the total amount....... + More

Insider trading - appellants entered into suspected insider trading being privy to unpublished price sensitive information ("UPSI") of declining profits of TJL and disposed of their promoter shareholding and thereby avoided losses - violation of Code of Conduct applicable to “insiders by not taking pre-clearances from the concerned authority of the company for trading in the shares of the company during the UPSI period - contention of the appellants that the impugned order has been passed in haste and that too without show-causing the appellants and thereby not providing them an opportunity of presenting the full facts - HELD THAT:- Having heard the learned counsel for the parties at reasonable length, we proceed to dispose of the appeal at the stage of admission itself without calling for reply/rejoinder etc. as this matt....... + More

Violation of the provisions of PFTUP Regulations - artificial trades - manipulative trading - there was a pattern of trading and the price of the shares went up in pre-planned manner by engaging in small trades sometimes of one share each but no explanation of the same was offered - HELD THAT:- This Tribunal held that the placing of orders in a very small number generally may point towards the possible violation of the provisions of PFTUP Regulations still it is possible that an investor observing the movement of the scrip could be placing orders in the system without any intention to manipulate the market. Finding that there is no connection of the appellants therein either with the company or with the group connected with the company it was found that merely irrational behaviour of the investor, for want of connection, it cannot be said....... + More

Compensatory interest on increased offer price - valuation of the shares to be done in accordance with Regulation 8(2)(e) of the SAST Regulations - Application for payment of interest rejected - appellant has prayed for compensatory interest at the rate of 10% per annum on increased offer price to be paid from April 10, 2018 to October 9, 2018 and 18% compensatory interest from January 31, 2020 till date of payment - HELD THAT:- Interest starts running from the date when respondent No. 2 entered into an agreement to acquire 100% ownership of FML which is April 10, 2018. The period of interest stops when respondent No. 2 submitted the draft letter of offer which was published on October 9, 2018. For this period, namely, April 10, 2018 to October 9, 2018 interest has been paid. After SEBI finalized the price of the shareholders on July 4, 2....... + 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.

Levy of penalty for Non disclosures as required under the LODR Regulations - appellant had issued non-convertible debenture securities - CIRP proceedings were ongoing - penalty imposed for violating Regulations 52(4) and 54(2) of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( 'LODR Regulations, 2015' - whether the impugned order imposing penalty upon the appellant for alleged contravention during the period prior to the approval of the resolution plan could be passed by the adjudicating officer? - HELD THAT:- In clear terms of the resolution plan, the show cause notice could not be issued to the appellant for the alleged contravention relating to the period prior to the acquisition and, consequently, the impugned order could not be passed against the appellant. What cou....... + More

Violator indulging in serous act of misusing client's securities - appellant was expelled from the membership of the respondent exchange and also declared as a defaulter - HELD THAT:- All the violations are admitted by him. No reply was submitted to the show cause notice issued regaring violation noted in the inspection for the year 2017-18. Considering the request of the appellant that he wanted to surrender his license afer redressing the complaints the investors, the Committee of respondent no. 1 time and again granted him time in hearing of the proceedings.Ultimately finding that the complaints were not resolved completely the impugned order was passed. As seen that after declaration of the appellant as a defaulter more complaints of the investors are pouring in with the respondent nos.1 and 2. The appellant was earlier penalized ....... + More

Fraud by the company - Liability of directors - Concealing and suppressing the material facts as in violation of the provisions of Section 12A of SEBI Act - Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - WTM directing the company to take steps for refund of the money from Banco and also debarred the appellant from accessing the securities market for a period of 5 years - HELD THAT:- The submissions so made are beyond the pleadings and cannot be taken into consideration. The respondent cannot be allowed to better their case and rely upon such documents which are not part of the record. There is no finding that the appellant, being a director for more than 10 years, was deemed to be involved in the day-to-day affairs and management of the Company nor there is any finding that the appellant was chairman ....... + More

Violation of Equity Listing Agreement clauses - whether the information relating to signing of a Binding Implementation Agreement ('Binding Agreement' for short) by an Authorized Executive Director of the appellant with the dominant Shareholders of the Bank of Rajasthan was liable to be disclosed on an immediate basis under clause 36 of the Listing Agreement and Regulation 12(2) of the PIT Regulations, 1992? - Penalty imposed of ₹ 5 lakh each on the appellant - contentions of the appellant on the inordinate delay in issuing the show cause notice and in passing the impugned order by respondent SEBI - HELD THAT:- The signed Binding Agreement in question was price sensitive and admittedly material to the performance of the appellant and needed to be disclosed on an immediate basis which was not done. On the basis of interpretat....... + More

Whole Time Member restraining the appellant from accessing the securities market - securities of the appellant in its demat account has also been frozen for the same period - appellant is a trader and investor in the capital market - HELD THAT:- Appellant had only executed one trade out of 983 trades, we are of the opinion that the penalty of debarring the appellant for six months is wholly unwarranted and cannot be sustained. Finding that 13 entities were acting as a homogenous group and were connected to each other and had executed the trades in a premeditated manner with a sole purpose of manipulating the price is not applicable in so far as the appellant is concerned. The finding that other notices were taking turns on different trading days with a premeditated motive to raise the LTP of the scrip is not applicable in the appellant....... + More

Fraudulent IPO proceedings - certain applicants of the IPO were funded by the entities connected with the Company itself and subsequently, the IPO proceeds were not utilized towards the objects of raising funds and instead were allegedly transferred to a few of the entities who had funded the applicants of the IPO - Underwriting Agreement to subscribe unsubscribed portion of the IPO - ex-parte ad interim order issued - Whether the Noticee nos. 4 to 11 are connected and whether the Company through its connected entities/Noticees has funded the subscription of its IPO? - HELD THAT:- A careful consideration of clauses of the Underwriting Agreement reveals that the obligation of the underwriter was limited/restricted to only those IPO applications that was to be procured by it only in case of default of payment by an applicant after allotment....... + More

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- The Registry shall also list all connected/cross special leave petitions filed by the Security and Exchange Board of India and other respondents. In the meanwhile, without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval. Steps in this regard be taken within a period of one week from today. For the time being, there will be stay of redemption payment to the unit holders.

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- Permission to file special leave petitions is granted Issue notice.Counter affidavit/reply be filed by the non-applicants/respondents within seven days. Rejoinder affidavit, if any, be filed within seven days thereafter. Service upon the unrepresented respondents is permitted through all modes including e-mails. An apprehension is expressed on behalf of the SEBI that the last order recording that without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval could be misread and treated as a precedent. This it is stated would create difficulties. We clarify that order [2020 (12) TMI 1209 - SUPREME COURT] has been passed in the peculiar facts and circumsta....... + More

Violation of provision of SEBI Act v/s IPC - Bail application - offence punishable under other Act such as IPC - Whether amount taken from the clients was 'deposit' or fees - invoking the principles of M.P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 - HELD THAT:- Section 26 of SEBI Act only prohibits cognizance of offence which is punishable under SEBI Act, but does not prevent cognizance in respect of offence punishable under other Act such as IPC. It is true that the police has come to know about the complainants after communicating with SEBI and after obtaining particulars from the same agency and in the FIR the names of the complainants have been given, but under Section 154 of Cr.P.C, it is not imperative that the aggrieved person is only authorized to lodge FIR. FIR has been lodged by SHO on the directions of ASP who....... + More

Fraudulent use of the mutual funds units of the complainant - Applicant seeking the grant of regular bail - applicant herein malafidely facilitated the accused director Awanish Kumar Mishra and AFSPL in using the said fraudulently transferred mutual fund units for margin - applicant seeking interim bail on the account of his wife’s illness - HELD THAT:- Applicant was in a fiduciary capacity and has allegedly committed gross breach of trust in relation thereto in alleged connivance with other co-accused persons of an alleged amount of INR 344.07 crores, and it has to be taken into account the factum that the complainant is a public limited company, and that the members of the public have also consequently been allegedly defrauded of the amount of INR 344.07 crores by alleged fraudulent use of the mutual funds units of the complainant....... + More

Power of SEBI to pass an ex parte interim order - allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss - appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent - HELD THAT:- Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cas....... + More

Expulsion against the appellant, from the membership of the National Stock Exchange of India Limited - Validity of respondents’ decision of withdrawal of trading facility and subsequent action of closing out of open transactions - appellant has contended that since the trading facility itself was interdicted, it could not have been expected to keep up with various margins and deposits prescribed by the respondents as no trading was being permitted. Whether prior approval of SEBI/Central Government was essential for enforcing the circular dated 19.05.1997 against trading/clearing members? - HELD THAT:- Clause (5) of Chapter IX of the Byelaws uses the phrase “the relevant authority may determine and announce” the operational parameters. Both “determination” and “announcement” of such parameters is t....... + More

Forward trade in commodities - Trading Irregularities - Piercing of corporate veil - abuse of position by the MD / Chairman of the Commodity Exchange - Plea of lack of adequate opportunity - principles of natural justice - Issuing show cause notice to the second respondent and not to the first respondent - multiple proceedings have been initiated but have resulted in no culmination over a period just short of a decade. HELD THAT:- We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of “independent enterprising journalist.&....... + 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

Offences under FEMA Act - whether show cause notice has been issued without considering the amendments made in various regulations framed under FEMA Act, 1999? - HELD THAT:- There is no dispute that there are transactions in foreign exchange either as derivatives or in the form of currency futures. The issue in this matter is as to whether the transactions have been made in accordance with Foreign Exchange Management (Foreign Exchange Derivative Contracts) Regulations, 2000 or not. The issue can be sorted out only after all the relevant documents are placed before the authorities. Thus, not entering into the merits of the case. Considering the pandemic situation, the authorities are requested to allow the petitioners to submit their record within 8 (eight) weeks from today. The oral submissions of the petitioners be recorded by way of vid....... + More

Interest liability u/s 42(3) of FERA - main ground on which the Petitioner claims interest is that Section 42(3) of FERA stipulates that interest is payable at 6% p.a. in all cases other than cases relating to confiscation either under Section 63 of FERA or under the Customs Act, 1962 - HELD THAT:- In present writ petition claiming interest was filed on or about 28.08.2009. It is clear that the writ petition was filed more than 9 years after receiving the rupee equivalent of UK Pounds 1800. Upon perusal of the affidavit, find that the Petitioner stated that she and her counsel visited the office of the 1st Respondent to request for the payment of interest and that she was constrained to file the writ petition on account of non-payment thereof. Apart from this statement, no explanation is offered for the delay and no written reminders are ....... + More

Holding of inquiry against the petitioner in the manner provided in Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - HELD THAT:- Impugned Show Cause Notice is at the first stage wherein the Adjudicating Authority on receiving a reply to the Impugned Show Cause Notice is to form an opinion whether an inquiry at all should be held against the petitioner. At this stage we do not deem it appropriate to entertain this present petition. The petitioner shall be at liberty to raise all its contentions before the Adjudicating Authority. Needless to say, if the petitioner is aggrieved of the decision taken by the Adjudicating Authority, it shall always be open to the petitioner to challenge the same in accordance with law.

Permission for Direct Investment in certain cases - Remittance of equity subscription/loan/corporate guarantee/bank guarantee or through other permitted mode - additional financial commitment in JSPML by way of equity subscription/loan/corporate guarantee/bank guarantee, etc. - Denial of grant permission to the petitioner to make additional commitment/payment - respondent have rejected the application of the petitioner and have not granted permission for making the additional financial commitment/payment of USD 300 million on account of the objection raised by the Enforcement Directorate - HELD THAT:- Respondent RBI by a cryptic non-speaking order has rejected the application of the petitioner without giving any reasons whatsoever. The said order fails to give any reasons as to why the application of the petitioner is being rejected. The ....... + More

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

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

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

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

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

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

Sabka Viswas Legacy Dispute Resolution Scheme, 2019 - mistake in indicating the category as 'arrears' and sub-category 'appeal not filed or appeal having attained finality' whereas it should have indicated the category as 'litigation' - Section 127 of the Finance Act, 2019 read with Rule 6(2) of the Sabka Vishwas (Legacy Dispute Resolution) Schemes Rules, 2019 (SVLDRS Rules, 2019) - HELD THAT:- The Court is of the view that the very fact that the Designated Committee granted registration number for the correctly filed SVLDRS-1 on 14th January, 2020 shows that the earlier objections were waived. Having processed the subsequently filed SVLDRS-1 and indicating those details in the SVLDRS-3 issued, there appears to be no justification for Opposite Parties to not accept NHSPL's calculation of tax amount due as ͅ....... + More

Levy of penalty u/s 76 of FA - Reasonable cause for the failure or not - photography services - cost of material consumed in process of rendering service to be included in assessable value or not - HELD THAT:- The appellant is justified in his belief and he was supported by a reasonable ground to the effect that he was not liable to pay the service tax on cost of such material. The benefit of this belief for him is receiving a favourable consideration at the instance of the Tribunal while granting the relief qua the penalty imposed under Section 78. There are no reason why the said benefit cannot be extended to the penalty imposed under Section 76, since both the Sections are to be read along with Section 80, which gives an overriding effect over Sections 76 to 78. The impugned order passed by the Tribunal which denied the said benefit to....... + More

Maintainability of petition - mandatory requirement with the compliance with the pre-deposit - Sabka Vishwas Legacy Dispute scheme - CENVAT Credit - Renting of Immoveable Property Service - HELD THAT:- On reading of Clause-2(ii) and (iii) of the Circular bearing No.1074/07/2019-CX dated 12.12.2019 and an entire reading of Section 124(2) read with Board Circulars would make it clear that the pre-deposit made at any point of time subsequent to the issuance of show cause notice ought to be taken note of and credit extended while indicating the amount payable by the assessee in the estimate in SVLDRS-3. As it is specifically clarified that manual processing of declaration would be allowed subject to conditions mentioned in the communication dated 08.01.2021, the objection at para-9 has been addressed - the respondent No.1 is directed to recon....... + More

Interest on differential amount of service tax - revision of price of storage charges - Section 75 of the Finance Act, 1994 - Extended period of limitation - HELD THAT:- There is no case of fraud, mis-representation or suppression of facts on the part of the appellant as they have disclosed the additional taxable turnover arising out of the issue of supplementary invoices and has also paid tax in time and also disclosed such turnover in their books of accounts and returns filed with the Department. In this view of the matter, the demand for the period July, 2012 to March, 2013 is barred by limitation. The appeal is allowed in part.

Restriction on utilisation of CENVAT Credit - recovery of arrears - vires of Rule 8(3A) of CCR - HELD THAT:- The demand in the instant case has been raised for contravention of Rule 8(3A) ibid restricting utilization of CENVAT Credit during the period of default which provision has been declared ultra vires/invalid by Court, hence, the demand cannot be sustained and the appeal, thus, succeed on this count. In the instant case no show cause notice U/s 11A of the Central Excise Act, 1944/Rule 14 of the CENVAT Credit Rules, 2004 have been issued by the department for recovery of the disputed demand which course is clearly impermissible in law in view of the judgments in the case of SANGHI POLYESTERS LTD. VERSUS SUPERINTENDENT OF C. EX., HYDERABAD [2009 (11) TMI 284 - ANDHRA PRADESH HIGH COURT], M/S SHREEMATHA PRECISION COMPONENTS, M/S JINALL....... + More

Recovery of CENVAT Credit - recipient of service - payment of service tax under wrong head - appellant was liable to pay service tax under the BAS but instead they have paid under the head “Advertisement Services” - period March, 2010 to March, 2014 - HELD THAT:- The SCN is wholly mis-conceived as the Department has attempted to classify the service in dispute in the hands of the receipt of service - It has been held by the Hon’ble Supreme Court in the case of SARVESH REFRACTORIES (P) LTD. VERSUS COMMISSIONER OF C. EX. & CUSTOMS [2007 (11) TMI 23 - SUPREME COURT] that cenvat credit cannot be denied questioning the assessment of service classification of the service provider, at the end of the recipient of service. Thus, in terms of Rue 2 (l) of CCR, the appellant is entitled to take cenvat credit of any input service....... + More

Issuance of pre-show cause notice consultation - Levy of service tax - services offered by the petitioner-company to two entities located outside India - recipients of the services are associate concerns or not - export of services - Rule 6A of the Service Tax Rules, 1994 - HELD THAT:- The contesting respondents were mandatorily required to have a pre-show cause notice consultation with the petitioner-company and that having not being done in the instant matter, the proceedings initiated by the contesting respondents via the impugned show cause notice are non-est in law. That being said, the only issue, which remains to be addressed, is concerning limitation. This aspect is pending consideration before the Supreme Court i.e. as to the date when the limitation will commence. The contesting respondents will serve an appropriate communicatio....... + More

Violation of principles of natural justice - Service of SCN - It is the case of the petitioner that communications are required to be made either on ‘email id’ or via ‘SMS’ on registered mobile/phone - Recovery of service tax - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Decisions in CAPGEMINI TECHNOLOGY SERVICES INDIA LIMITED VERSUS THE UNION OF INDIA, THE CHIEF COMMISSIONER, CENTRAL GST & CUSTOMS, MUMBAI ZONE, THE COMMISSIONER, CGST & CENTRAL TAX, THE JOINT COMMISSIONER, CGST & CENTRAL EXCISE, MUMBAI EAST, [2020 (10) TMI 3 - BOMBAY HIGH COURT] put emphasis on object underlying framing of scheme. The division bench deciding the matters has emphasised that the scheme has been formulated with a view to put an end to past disputes pertaining, inter alia, Central Excise and Service....... + More

Levy of penalty u/s 78 of FA - allegation of evasion of service tax - Legal Opinion received from their empanelled advocates - Reverse charge mechanism - intent of suppression of facts not present - HELD THAT:- The condition precedent for invoking Section 78 ibid. viz. that there should be non-levy, short levy, short payment or erroneous refund of Service Tax by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Chapter or the rules made thereunder with the intention to evade payment of Service Tax, is not satisfied and accordingly, Section 78 ibid. would not be attracted in the present case - The assessee being a public sector undertaking of the Government of India is also an additional factor to hold that any mala fide intention to evade payment of Service Tax wo....... + More

Refund of the unutilized credit - inputs and input services used for providing output services - Cleaning Service - Plant Rental Charges - Freight Charges - Installation Charges - Pest Control Charges - Car parking charges, terrace charges, terrace and car-bike charges - Auditorium Charges - Event Management Charges - Purchase of air conditioning - Civil Work - Membership subscription. Cleaning Service - HELD THAT:- In the case of M/S HCL TECHNOLOGIES LTD VERSUS C.C.E. NOIDA [2015 (8) TMI 595 - CESTAT NEW DELHI], it has been clearly held that Cleaning Services are essential for providing output services and therefore, the same would qualify as input service and hence eligible for refund - the denial of CENVAT Credit on this service is bad. Plant Rental Charges - HELD THAT:- The appellant did not file any details as to the nature of servic....... + More

CENVAT Credit - input services - advertising service availed from the print media to foster the business - appellant is a coaching institute - HELD THAT:- The definition of input services as amended with effect from 01.07.2012, make it clear that inclusive part of the definition specifically include among various activities, the service provided by advertising agency. It is sufficient to hold that advertisement service is an input service. Also it is apparent that the appellant has availed the same to foster its business i.e. in relation to its business. Hence the same is definitely an input service for the appellant for which appellant can claim credit of service tax paid on such service. Hence, Cenvat Credit cannot be at all denied. While disallowing this Cenvat Credit, Commissioner (Appeals) has relied on Master circular dated 23.08.20....... + More

Demand of Service Tax - Works Contract Service - reverse charge mechanism - ST-3 returns not considered before passing the orders - violation of principles of natural justice - HELD THAT:- The appellant has deposited service tax in time which has been reflected in ST-3 return and the impugned order has been passed without considering the ST-3 returns, therefore, there is gross violation of principle of natural justice. Appeal allowed - decided in favor of appellant.

Levy of service tax on municipalities - Renting of immovable property service - a “person” within meaning of Finance Act, 1994 as it stood prior to 01.07.2012 or not - period prior to July 2012 as well as post 01.07.2012. Period prior to 01.07.2012 - HELD THAT:- To attract levy under Section 65(105) (zzzz) of the Finance Act 1994 there should be renting of immovable property or provision any other service in relation to such renting, for use in the course of or furtherance of, business or commerce to “any person”. Only if service was provided by “any other person”, i.e, by a person other than the owner, such service was liable to service tax - The expression “any other person” can only mean any other person other than the owner of the property. Therefore, owner of the immoveable property is ....... + More

Evasion of Service Tax - Punishable offence - initiation of criminal proceedings - The amount involved is less than Rupees two crores - Site Formation and Clearance Service - Erection, Commissioning or Installation Service - Interior Decorators Service - Supply of Tangible Goods Service - HELD THAT:- By virtue of Circular No.201/11/2016-Service Tax vide Annexure-R4, produced by the respondent, as a consequence of the amendment, the power of arrest in Service Tax is available only if a person collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond the period of six months from the date on which such payment becomes due and the amount exceeds ₹ 2 crores. The amount involved in this case is less than Rupees two crores. The learned counsel for petitioners would also cont....... + More

Condonation of delay in filing appeal - no sufficient cause for delay shown - Recovery of Refund of Service Tax - principles of unjust enrichment - Section 35 of Central Excise Act - HELD THAT:- There is no denial that the impugned appeals were filed before Commissioner (Appeals) after a delay of one month and 20 days. There is also no denial to the fact that no sufficient reason was explained to Commissioner (Appeals) for the said delay. Learned Counsel for appellant even today has not cited any reason which may be considered as sufficient cause for the impugned delay of one month and 20 days for filing an appeal before Commissioner (Appeals) in terms of Section 35 of Central Excise Act, 1944. The prescribed period for filing appeal before Commissioner (Appeals) is two months, however, delay of one month is condonable by the Commissioner....... + More

Levy of penalty - extended period of limitation - non/short payment of service tax or not - Revenue has submitted that the non payment of service tax in is instalments/ parts and also conduct of the appellant during the investigation proceedings is impressed upon to be highly non co-operative - HELD THAT:- It is observed that the demand as raised by the Department against the appellant amounting to ₹ 40,79,178/-, the entire amount alongwith the interest of ₹ 3,08,328/- stands paid by the appellant over a period of four months starting from 21.01.2015 i.e. from the date even prior to the search was conducted in the appellant’s premises and the entire aforesaid amount stand paid till May, 2015 i.e. much prior before the issuance of the impugned show cause notice dated 27.09.2016 as stands clear from the table in the show c....... + More

Refund of CENVAT Credit amount to Consumer Welfare Fund - unjust enrichment - HELD THAT:- The appellant have not led evidence that there was no passing of the service tax burden to the end users of the canteen. In view of the contention of the learned Counsel at the bar that food has rather been given at subsidised rate, this appeal is allowed by way of remand to the Adjudicating Authority with the direction to examine the agreement between the appellant and M/s Caparo Engineering India Limited, as well as other relevant documents like costing of food, price charged from the end users. If it is found that the company M/s Caparo Engineering India Limited have not passed on the burden of the service tax to their employees/ workers, the amount of refund shall be paid to the appellant. The appeal is allowed by way of remand.

Pre-Show Cause Notice Consultation - Scope of voluntary statements recorded before the Senior Intelligence Officer - Applicability of paragraph 5 of the 2017 Master Circular - HELD THAT:- The “voluntary statements” recorded before the Senior Intelligence Officer cannot constitute pre-show cause notice consultation as envisaged in the paragraph 5 of the 2017 Master Circular. Consultation entails discussion and deliberation. There is back and forth between parties concerned with the consultative process, leading to, metaphorically speaking, often, separation of wheat from the chaff. A voluntary statement is at best a one-way dialogue made before an authority which does not take a decision as whether or not next steps in the matter are required to be taken - Therefore, it cannot be said that voluntary statements made by the offic....... + More

Levy of Penalty u/s 78 of FA - CENVAT Credit on disputed services, reversed or not - suppression of material facts or not - it is alleged that but for the audit of records by the Department, the issue relating to wrong availment of service tax credit on services not used for providing output service during the relevant period would have gone unnoticed - HELD THAT:- It is not disputed that the appellant reversed the cenvat credit on impugned services on being pointed out by the Department before the issuance of the show-cause notice. Further the appellant has not utilized the said credit and had sufficient balance during the relevant period in their cenvat credit account which was reversed and the Department was informed vide its letter dt. 14/10/2015 regarding the reversal of the said credit. Further the Division Bench of this Tribunal in....... + More

CENVAT Credit - inputs/capital goods - Angles, Channels, Beams, MS Tower parts (SS Mats) etc. used in erection and installation of towers - Pre-fabricated buildings/shelters/PUF panels used for housing/storage of generating sets and other components/equipments/spares etc. - denial on account of nexus with output services - extended period of limitation - HELD THAT:- Hon’ble Bombay High Court in Bharti Airtel Limited v. CCE, Pune-III [2014 (9) TMI 38 - BOMBAY HIGH COURT] has upheld the stand of the Department disallowing credit, while Hon’ble High Court that of Delhi held that credit is admissible in the case of Vodafone Mobile Services & Others [2018 (11) TMI 713 - DELHI HIGH COURT]. The jurisdictional High Court has not pronounced any judgment on this issue. Thus, it is clear that two High Courts have taken a completely c....... + More

Clandestine removal - MS Ingots - Iron Ore - stock of finished goods lying in factory without entry in production register - corroborative evidence proving the allegations against the appellant or not - penalty - HELD THAT:- There was no better evidence before Commissioner (Appeals) than it was before Assistant Commissioner. Commissioner (Appeals) has held that the verification of stock of Ingots was conducted in presence of the Authorized Signatory of the appellant, who neither had objected the method of physical verification nor made any complaint. He had rather admitted the same and also in the excess stock of 56.300 MT of MS Ingots valued at ₹ 11,09,110/-. The statement of said Authorized Signatory Shri Kumar Chakraborty is perused. It shows that there is no admission for the alleged excess stock. None as his answers recorded in....... + More

CENVAT Credit - Input service distribution - unit exclusively engaged in the manufacture of exempted goods - HELD THAT:- The Division Bench of this Court in 'CCE vs. ECOF Industries Pvt. Ltd' [2011 (2) TMI 1130 - KARNATAKA HIGH COURT] has held that the registered input service distributor is entitled to distribute credit, subject to the conditions mentioned in Rule 7 of Cenvat Credit Rules, 2004. The aforesaid decision which has a bearing on the controversy involved in the appeal has also not been considered. Therefore, the substantial question of law framed in this appeal is answered in favour of the assessee. On perusal of the order passed by the Tribunal, it is evident that the aforesaid order is cryptic and suffers from vice of non-application of mind. The Tribunal has not assigned any reasons in respect of its finding and has....... + More

Refund of input tax credit - input service or not - consent fees paid to Tamil Nadu Pollution Control Board (TNPCB) under reverse charge mechanism - requirement of issuance of SCN u/s 11B of CEA - HELD THAT:- The Order-in-Original has been passed undoubtedly without the issuance of Show Cause Notice. The Commissioner (Appeals) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by the appellant-company to argue before the authorities. It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be ....... + More

Levy of penalty - CENVAT Credit - goods not supplied only invoices were moved - allegation is that goods were never transported and the goods never crossed the Shambhu Border - Lack of investigation on the part of Revenue - HELD THAT:- In this case, it is a fact on record that during the course of investigation, no shortage or excess of the goods were found in the premises of both the appellants. In that circumstance, duty cast on the Revenue to ascertain the fact if the appellant no.1 has not received the goods, then from where, they procured the goods and used the same for manufacturing of dutiable goods which have been cleared on payment of duty. Further, it was also the duty of the Revenue to find out where M/s Mas Equipments Pvt Ltd has cleared the goods without payment of duty. This is lacking in the investigation which gives benefi....... + More

Quantification of CENVAT Credit reversed - common Input/Input Services used in exempted goods/exempted services and dutiable goods/taxable services - revenue has issued Show Cause Notices on the monthly reversal as well as on the yearly reversal, while appellant is calculating the amount on provisional basis month wise and also final payment on the completion of the financial year - Rule 6(3) of CCR - HELD THAT:- There is indeed serious error in calculation of the amount to be paid under Rule 6(3). As regard the terms “total Cenvat Credit” to be considered for the formula as provided under Rule 6 (3A) - It also appears that there is a duplication of demand in as much as Show Cause Notice issued on monthly reversal as well as on yearly reversal. The Adjudicating Authority has also not properly considered the “total Cenvat....... + More

Clandestine manufacture and removal - copper wire ingots - entire documents on which the demand has been confirmed, recovered from the factory premises of M/s Kaycee Electricals and from the residential premises of its Partners - corroborative evidences or not - third party evidences - HELD THAT:- Apparently and admittedly, no search was conducted in premises of any of the present appellants. No physical verification of the stock of present appellants was conducted. Both the show cause notices, the initial order-in-original and the impugned order under challenge are based merely upon the loose parchies and other handwritten documents as was recovered from the premises of M/s Kaycee Electricals and also on the basis of statements of the Supervisor as well as Partner that too of M/s Kaycee Electricals itself. The entire evidence is therefor....... + More

CENVAT Credit - input services - Air Travel Agent service - Club or Association service - Event Management service - Fashion Designing service - Franchise Service - Interior Decorator service - Outdoor Catering service - Rail Travel Agent service - Renting on immovable property service - Rent-a-cab Operator service - Tour Operator service - Travel Agent Services - credit denied on the ground that no evidence was produced by the appellant to prove that the services was availed by the appellant and also on the ground that there is no nexus between the services with the manufacture and clearance of the goods or for their business activity. HELD THAT:- All the services per se are prima facie input services held in various judgments, however, the admissibility of Cenvat credit on these services can be decided on the basis that whether the serv....... + More

CENVAT Credit - input services - Membership of Club Service - Health Insurance Service - credit denied holding that both the services are specifically excluded from the definition of input service, as stands amended, w.e.f. 1 July 2012 - extended period of limitation - HELD THAT:- Both these services are neither for the personal use of the appellant nor for consumption of any one employee, but for the welfare of the employee at large. Tribunal Hyderabad in the case of M/S HYDUS TECHNOLOGIES INDIA PVT LTD. VERSUS CCE, C & ST, HYDERABAD-II [2017 (2) TMI 538 - CESTAT HYDERABAD] has held that the group gratuity scheme for employees is a service for the welfare of the employees at large services stated in clause (c) in the input service definition are held to be excluded only when such services are used primarily for personal use or consum....... + More

CENVAT Credit - GTA Services - Freight charges - goods cleared from the factory gate to the place of buyer - place of removal - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period in the light of the Circular issued by the Board dated 08/06/2018 - appeal allowed by way of remand.

CENVAT Credit - inputs/capital goods - corrugated profile sheets - prefabricated modular - cealing panel/wall panel/PVC conduits/wall to ceiling coving/wall to wall coving/single doors/double doors/locks etc., - these were used for creating ‘Clean Room’ and Clean room is required for maintaining temperature control and ‘RH’ control - HELD THAT:- Admittedly, the appellant have used the disputed inputs for fabrication of clean room, which is essential for manufacture of their dutiable goods, as such clean room is necessary for maintaining proper temperature and hygiene as well as keeping the RH factor in control, and without it manufacture of dutiable medicines is not possible - Further, under Rule 2(k) of CCR, inputs means, “all goods used in the factory of the manufacturer of final products”. The appellant is entitled to cenvat credit on the items in dispute as inputs - Appeal allowed - decided in favor of appellant.

Clandestine procurement and removal - MS ingots - TMT Bars, flats, challans etc. - shoratge of goods - M.T. M.S. Ingots - MT TMT Bar - MT Sponge Iron - challenge mainly based on reliance upon third party evidence - evidentiary value of the third party evidence - HELD THAT:- There is no other evidence or document in the form of stock verification of the raw-material of the appellant and the material supplied to M/s. PIL nor any evidence about usage of any transportation by the appellants for transporting the alleged quantity of raw-material to M/s.PIL. In absence thereof the documents recovered from M/s.PIL cannot be held against the appellant. It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of C.C.E. & S.T. -RAIPUR VE....... + More

Liability of Central Excise Duty - principal manufacturer or job-worker - Territorial Jurisdiction - Recovery of duty u/s 11D as amount collected in the name of Duty of central excise - safety razor blades and shaving system - It was alleged that as principal manufacturer, petitioner had failed to discharge the duty in terms of the provisions of section 4A of the Central Excise Act on the goods cleared by Tigaksha from its factory at Una, Himachal Pradesh - extended period of limitation - HELD THAT:- it is evidently clear that the taxable event i.e. manufacture of the goods in question had taken place in the factory premises of Tigaksha at Una in Himachal Pradesh. Thus, neither respondent No.2 nor respondent No.3 has the territorial jurisdiction to issue any notice to show cause-cum-demand for levy of central excise duty on such products........ + More

Suppression of production and clandestine removal - bars/ rods - MS Ingots - entire case is on the basis of wrong allegation based upon the documents recovered from third party - HELD THAT:- The documents recovered from the premises, based whereupon the show cause notice was issued, admittedly are in the form of loose parchies and in the form of hand written ledger book that too those got recovered from the premises of SSSRM. There appears no corroborative evidence to support those loose & handwritten documents. Nor any evidence to connect them to the alleged guilt of the appellant. The statement of appellant, Smt. Sunita Devi, was recovered in June, 2005. There appears no acknowledgement on her part about she being involved in the alleged collusion with SSSRM for the alleged clandestine removal except for the raw material to have bee....... + More

CENVAT Credit - input services - outward transportation of goods from the factory/bulk terminal/depot to their customer’s premises - place of removal - case of Revenue is that the ‘place of removal’ will always be factory gate and the assessee is not entitled to cenvat credit on GTA up to the buyer’s premises - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period - appeal allowed by way of remand.

Entitlement to petitioner's surrender leave salary for 64 days payable from the date of retirement to till the date of actual payment - respondents have not settled the surrender leave salary, at the time of retirement and now seeking disbursement - HELD THAT:- The issue involved in the present writ petition is covered by various orders of this Court, in the case of S. ALAGESAN VERSUS THE MANAGING DIRECTOR TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LTD., THE GENERAL MANAGER TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM LTD. [2019 (12) TMI 1471 - MADRAS HIGH COURT] wherein an issue was dealt in the case of THE TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LIMITED, KUMBAKONAM, THE GENERAL MANAGER, THE TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LIMITED, PUDUKKOTTAI. VERSUS D. SOUNDARARAJAN [2019 (9) TMI 1512 ....... + More

Benefit of SVLDRS - SCN was issued for Recovery of amount refunded erroneously - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - benefit of scheme rejected by the designated committee holding that by virtue of provisions of Section 125(1) (d) of the Act of 2019, the petitioner is not eligible for benefits inasmuch as, the issue pertains to amount refunded erroneously - Sections 121 (c) & 125 (1) (d) of Finance Act, 2019 - HELD THAT:- Undoubtedly, Section 121(c) defines 'amount of arrears' means the amount of duty, which is recoverable as arrears of duty under the direct tax enactment in the situations specified. It in no manner deals with the amount of erroneous refund recoverable from the assessee. Moreover, the provisions of Section 125(1) (b) specifically exclude the persons from eligibility to make a declaration u....... + More

Judicial Review of Show Cause Notice (SCN) - whether refunds granted earlier pursuant to the Judgment of the Apex Court can be considered to be refunds erroneously granted in view of the subsequent Judgment of the Apex Court - Recovery of refunded Education Cess and Secondary and Higher Education Cess - Section 11A(i) of the Central Excise Act, 1944 - Interest in terms of Section 11AA of the Act - Area based exemption ELD THAT:- The term “erroneous” any error deviating from law. A change of law subsequently would not make an action taken earlier by Quasi Judicial Authority in terms of law as it stood then, to be held to be erroneous so as to enable the Departmental Officer to invoke powers under Section 11A of the Central Excise Act. On perusal of Section 11A reveals that the power under Section 11A for recovery of duties not ....... + More

Revising the order of Rejection of refund claims - the appeals filed by Revenue (against grant of refund) were earlier dismissed on the grounds of monetary limit - benefits in terms of Notification No. 20/2007 CE dated 25.04.2007 - area based exemption - substantial expansion - HELD THAT:- In the recital of the impugned order the respondent No. 3 refused to accept that the petitioner complied with the requirement of the Notification No. 20/2007 dated 25.04.2007 regarding investments of fixed assets more than 25% towards expansion of the manufacturing unit. Although, the order of the Commissioner (Appeals) is referred to, however, the respondent No. 3 did not elaborate as to why it disagreed with the findings of the Commissioner (Appeals) although, the petitioners submitted their objections in response to the said show cause notice and had....... + More

CENVAT Credit - input services - nexus with the output goods - expenses incurred in relation to after sales service - Has not the Hon'ble Tribunal committed an error in including within the ambit of Input Services, the services rendered by a third party, contrary to the confined meaning assigned to input services defined in Rule 2(I) of CENVAT Credit Rules, 2004? - HELD THAT:- The facts clearly show that there is direct nexus between the activity of TVSFS with that of the activity of the assessee. It is clear from the exclusive arrangement between the assessee and TVSFS. The expansive definition requires to be applied in this case and as noted, the Memorandum of Understanding provides for exclusive retail financing of two wheelers manufactured by the assessee, which results in promotion and expansion of sale of two wheelers manufactur....... + More

CENVAT Credit - sale of discarded scrap, i.e. used empty drums and empty bags - applicability of Rule 6 (3) of Cenvat Credit Rules, 2004 - HELD THAT:- The perusal of Rule 6(3) makes it abundantly clear that Rule 6(3) is applicable only to the manufacturers that too those who manufacture two classes of the goods i.e. non-exempted and exempted goods. Apparently and admittedly the appellant herein is manufacturing only one kind of goods which is PP woven fabric. Admittedly the empty polythene bags of raw-material and the empty drums of power oil as have been cleared by the appellant, irrespective for consideration, are not the goods manufactured by the appellants. There has been an amendment in the Rule w.e.f. 01.03.2015 by virtue of Notification 06/2015 and the following explanation has been inserted - irrespective of the said amendment, sc....... + More

Validity of assessment order - opportunity of being heard prior to framing of an assessment or not - attachment of properties of the partners of the firm - recovery of arrears of tax and penalty due to the Government - HELD THAT:- The proviso to Section 24(3) specifically requires that the dealer be afforded reasonable opportunity of being heard prior to framing of an assessment - Such reasonable opportunity, Courts have been consistently held, must include an opportunity of personal hearing. Admittedly, in the present case, the petitioner has not been heard personally prior to the impugned orders having been passed. The petitioner will appear before the respondent on Thursday, the 15th of April 2021 at 10.30 a.m without expecting or anticipating any further notice in this regard - Petition allowed.

Doctrine of Bias - Levy of Entry Tax and penalty - entry of all goods (other than motor vehicles) into a local area within the state of Goa - tax or penalty in respect of the import of CAB into the State of Goa under the Entry Tax Act - validity of provisions of Section 3 of the Entry Tax Act insofar as it is invoked as a charging provision for the levy of tax on entry of goods into a local area within the State of Goa - HELD THAT:- Shri Ashok Rane, ought not to have taken up and disposed of the petitioner's appeal against the order dated 29.03.2014 for the Assessment Year 2010-11. The Tribunal, with respect, erred or rather failed to exercise jurisdiction vested in it, in not upholding the petitioner's contention based on the Doctrine of Bias, in the peculiar facts and circumstances of the present case. The impugned orders dated ....... + More

Restoration of penalty - at the time of interception, the e-sugam was not tendered and was furnished subsequently - Section 64(1) of Karnataka Value Added Tax Act, 2003 - HELD THAT:- It is well settled in law that a penalty is attracted only if there is an attempt to evade the tax payable under the Act and not merely because the documents accompanying the goods are not in the prescribed format/form - On perusal of Section 53(12)(a) of the Act, it is evident that penalty can be levied only in case where sufficient cause is not shown. In the instant case, the First Appellate Authority namely, the Joint Commissioner of Commercial Taxes based on the material available on record, recorded a finding that goods belonging to a registered dealer of the State whose bonafides are not doubted were moving for the purpose of sale to a registered dealer....... + More

Denial of downloading and issuance of 'C' declaration forms - post GST situation - purchase of High Speed Diesel from suppliers in other States - inter-state trade - Central Sales Tax Act, 1956 read with the Central Sales Tax (Registration and Turnover) Rules, 1957 - HELD THAT:- The issue decided in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] where it was held that respondents are directed to permit these petitioners to download 'C ' forms, as has been done in the past for the purpose of purchasing petroleum products against the issuance of 'C' declaration forms. Petition allowed.

Invocation of extended period of limitation - suppression of information relating to determination of value of tipper lorry - determination of value for tipper lorry - overlapping demands or not - HELD THAT:- In terms of the directions issued, the erstwhile counsel for the appellant-company has intimated the Insolvency Resolution Professional by sending notices by speed post as well as by e-mail and a memo of compliance dated 15.03.2021, complying the order dated 11.02.2021, has been filed. The said memo is taken on record. The appeals are dismissed for default.

Rectification of Mistake - error apparent on the face of record or not - Refund of Input Tax Credit - failure to reverse the input tax credit in respect of the invisible loss ratio - HELD THAT:- This Court called upon the assessing officer to make available the copy of the letters given by the petitioner herein. In response to the aforesaid direction, the assessing officer immediately made available a copy of the petitioner's letters in which the petitioner himself has accepted the invisible loss ratio in his case at 5%. Of course, the petitioner's counsel would still insist that when a specific mandate has been issued by this Court that the assessing authority should examine the manufacturing process before arriving at invisible loss ratio and that the said mandate cannot be given go by by receiving a waiver letter from the petit....... + More

Validity of assessment order - non-service of orders - change of place of business intimated to the department or not - attachment of Bank Accounts of petitioner - HELD THAT:- It cannot be appreciated as to how an officer in 2020 could compare and verify a signature dated 20.06.2012 as it is very likely that there had been a wholesale change in the composition of that office in the intervening period of eight years. Thus, in a matter of this nature, the benefit of doubt should certainly be given to the petitioner. This is particularly so since there is no allegation of malpractice foisted upon the petitioner by the officer nor is such an argument. As far as the TNVAT appeals are concerned, 100% of the disputed taxes are said to have been paid and as far as CST appeals are concerned 25% of the disputed taxes are said to have been paid. The....... + More

Finalisation of assessment - inclusion of amount computed under Income Tax for the purpose of computing the petitioner's turnover under TNVAT Act - levy of tax and penalty - HELD THAT:- There is no clear proof evidencing the production of various proofs. Be that as it may, it appears that in the impugned order, atleast a portion of the amount that represents the petitioner's income amenable to income tax, has been included for the purpose of computing the petitioner's turnover under TNVAT Act. That apart, another defect pointed out by the assessing authority rests on mismatch. However, the procedure laid down in J.K.M.Graphics Solution Private Limited case [2017 (3) TMI 536 - MADRAS HIGH COURT], was not followed.

Levy of higher rate of Tax on Restaurant as applicable on Hotels - Period for determination of interest liability - Bondafide belief - Violation of principles of natural justice - assessing officer pointed out that after issuing pre-revision notices, the objections of the assessee were received - HELD THAT:- Personal hearing was held on 18.12.2015. On the said date the petitioner's representative appeared and his statement was also recorded in writing by the assessing officer. Only thereafter the impugned orders were passed on 06.01.2016. Thus, the principles of natural justice were complied with in the instant case. Whether the respondent erred in applying Section 7(1)(a) of the Act? - HELD THAT:- Since Rainbow Restaurant is carrying on its business in the very same premises, the assessing authority rightly held that it is a restaura....... + More

Levy of tax on turnover - transactions purportedly involving inter-state sales and branch transfers which were not supported by the Form-C and Form-F respectively - inclusion of freight element in taxable turnover - HELD THAT:- Assessments under the Tax enactments are by and large based on the returns filed by an assessee. In the case of Tamil Nadu Value Added Tax, 2006 and the Central Sales Tax Act, 1956, it is certainly driven by the returns filed by a “dealer” unless no returns were filed. In this case the petitioner had filed returns under the provisions of the Central Sales Tax Act, 1956. In the present case, the sale was concluded at the factory gates itself and therefore the freight element cannot from part of the taxable turnover as was rightly contented by the petitioner - Since the sale took place at the factory gate....... + More

Levy of tax - transfer of right to use goods or not - sale was in the course in the import or not - Operating lease agreements - eligibility for exemption under Section 3-A(2)(a) of the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- Since the dispute pertains to the Assessment Years 2004-2005 and 2005-2006 and since these Writ Petitions are pending considerably for a long period of 13 years before this Court, the Court is inclined to exercise its jurisdiction under Article 226 of the Constitution of India and therefore takes up the case for a final disposal on merits even though the petitioner may have an alternate remedy before an Appellate Authority under the provisions of the Tamil Nadu General Sales Tax Act, 1959. Since the petitioner continued to be the real owner of the goods imported under the arrangement as per the respectiv....... + More

Refund of Input tax credit - zero rated sales - rejection on the ground that the Form-W was not filed within 180 days from the date of making zero rated sale - HELD THAT:- Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006 states that where the dealer has not adjusted the input tax credit or has not made a claim for refund within a period of 180 days from the date of making zero rated sales accrual of such input tax credit shall lapse to Government. The matter is remitted to the file of the second respondent. The second respondent shall verify the petitioner's Form-I returns filed on monthly basis and also confirm as regards the admissibility and genuinity and if they are found to be in order, the second respondent shall pass appropriate orders for refund - petition allowed by way of remand.

Recovery of sales tax dues - liability of third person (spouse) who has giving the property as security - Raising of encumbrance created by way of Intimation - contract of guarantee - whether the security given can be subjected to revenue recovery under the provisions of the Revenue Recovery Act? - HELD THAT:- the security bond was not executed in her capacity as wife of the Proprietor and she executed the same in her capacity as an 'individual person' and she has given an undertaking that in the event of non-payment of statutory dues, the immovable property given by way of security can be attached. Where the security bond is executed as an individual person and further as per Section 21(2-B) of the TNGST Act, where it appears necessary to the authority granting a certificate of registration under this Section, so to do for the pr....... + More

Levy of tax on the turnover pertaining to design engineering charges - interstate purchase or not - Revenue would contend that the Tribunal ought to have noted that the Form C declaration filed by the respondent dealer included tax portion also for the turnovers on which they had claimed exemption and hence it is conclusively established that the turnover is taxable in the State - HELD THAT:- The Tribunal held that the conditions specified in Section 6(2) of the CST Act have been satisfied by the dealer and faulted the Assessing Officer for disallowing the claim for exemption only on the ground that the dealer had collected tax whereas he had not rejected the declaration Form filed in support of the claim for exemption made on transit sales under Section 6(2) of the CST Act. Thus, the Tribunal rightly appreciated the factual position whil....... + More

Exemption from turnover - inter-state sale or not - Form-F declaration - false document - consignment sales or not - AO rejected the claim on inter-state movement of goods in the second round of proceedings after remand - HELD THAT:- The Tribunal placed heavy reliance on the conclusion arrived at by the Enforcement Wing Officials, who had caused an inspection of the petitioner's place of business, the statements, which were recorded from the dealer, the inspection conducted in the place of business of the broker, the statements recorded from him, to conclude that the entire dispatches made by the petitioner has to be treated as outright inter-State sales and liable to be taxed accordingly. The appellate Deputy Commissioner noted that the petitioner is in a position to show the closing stock balance available with the various agents in....... + More

Validity of assessment order - validity of estimation done by the Assessing Officer based upon records, which were recovered during the inspection - HELD THAT:- The Tribunal found that the petitioner had paid wages during the relevant year to the tune of ₹ 4,12,515/- as per book marked “B” and based upon the payment of wages, the Assessing Officer estimated the value of the electrical goods manufactured and sold outside the accounts at ₹ 22,27,551/- and the purchase of raw materials outside the accounts at ₹ 16,50,060/- under Section 7A of the TNGST Act. The Tribunal noted that there was no proof by way of delivery note for the supply of raw materials for manufacture of finished goods for labour charges. Further, it noted that there was no proof for the supply of finished goods to the customers with the labou....... + More

Violation of principles of natural justice - validity of assessment order - Assessing Officer did not look into the accounts, which were produced by the appellant - HELD THAT:- The refusal to exercise extraordinary jurisdiction under Article 226 of the Constitution of India when a statutory alternate remedy is available under the Act is a selfimposed restriction and there are exceptions carved out from this selfimposed rule. One such exception, which has been held by the Court to be a justifiable reason to exercise writ jurisdiction, is when the writ petition is pending for a considerable length of time before a Court and it would be too harsh on the party to be driven to avail the alternate remedy after few years. The Assessing Officer cannot state that he need not call for other bills and even it is called for, except for the 7 bills, w....... + More

Validity of assessment order - Condonation of delay in filing appeal - recovery of the amount as determined by the assessment year - HELD THAT:- The statutory appeals along with the stay petitions and applications for condonation of delay are pending adjudication before the 2nd respondent and therefore, the petition is disposed of with the directions that the 2nd respondent shall decide the applications for condonation of delay, and then if necessary, the applications for stay, Exts.P5 to P5(b), within a period of three months from the date of communication of this judgment. Writ petition disposed off.

Seeking to be impleaded as one of the party-respondents - SCN issued for the period of assessment between 01.04.2015 and 31.08.2015 - HELD THAT:- We would not have entertained this writ application as the subject matter of challenge is a show-cause notice. However, there are few jurisdictional issues raised and argued by the learned counsel appearing for the writ applicant going to the root of the matter. Prima facie, it appears that the authority seeks to invoke Section 34 (8A) and Section 50 respectively of the Gujarat Value Added Tax Act, 2003. One of the jurisdictional issues involved in the present litigation is that Section 50 could not have been invoked for assessing a commission agent as liability has to be first determined by framing an assessment. Section 50 can be invoked to recover the “tax due” either from the com....... + More

Seeking free possession and enjoyment of the property - transactions made by a Power of Attorney holder, prior to coming into the force of the provision - Section 19C of the Kerala General Sales Tax Act - Sales Tax dues - priority of charge on the land of the 7th respondent - attachment and sale of the property through Court proceedings - appropriation of 7th respondent's property towards Sales Tax dues of the 6th respondent - take over of the land by the State without assessment of dues under Section 34 of the Revenue Recovery Act - delay or laches on the part of the petitioner or not - principles of res-judicata. Maintainability of the writ petition in the context of res judicata - HELD THAT:- The petitioner had approached this Court earlier filing O.P. No.10661 of 2002. The said writ petition was filed by the petitioner seeking to ....... + More

Dishonor of Cheque - Rebuttal of presumptions under Sections 118 and 139 of NI Act - genuine document supported by consideration or not - HELD THAT:- As rightly noticed by the learned Magistrate, it appears that his scribe has strained very much to adjust the space by modulating the size of letters in accordance with the space available above the signature of the first respondent, which is shown in the stamp paper. Moreover, though four signatures of the first respondent are shown in the stamp paper, which, according to the appellant, are that of the first respondent, the first respondent admits only one. On the very face of the document, three signatures are in one ink and another signature on the top, that is found against the name of the first respondent, is in different ink. If the document was signed by the first respondent in a sing....... + More

Dishonor of Cheque - acquittal of accused - dishonoured cheque were towards the discharge of a liability or not - legally enforceable debt for attracting presumption, present or not - rebuttal of presumption or not - applicability of Money Lenders Act - HELD THAT:- The evidence on record clearly leads to the conclusion that though the endorsement on the cheque return memo states that the signatory to the account had changed, the real fact borne from the evidence is that concerned cheque was dishonoured as there were “no sufficient funds” in the account nor was any arrangement made to cover the said cheque. Whether the Judgment passed by the learned JMFC contrary to law and resulted in gross miscarriage of justice by acquitting the respondents/accused? - HELD THAT:- It appears that the cheque bears a word “Self” in ....... + More

Dishonor of Cheque - rebuttal of presumption - signatures on cheque accepted - decision on receipt of notice - Section 143A of Negotiable Instruments Act - HELD THAT:- Considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act. The reciept of notice could not be decided in th....... + More

Seeking grant of Bail - Smuggling - suspected parcels containing ‘MDMA’ drugs, weighing 150 gms - contraband articles seized from the possession of the petitioner - case of Revenue is that investigation clearly revealed that the said drugs were purchased and ordered by the petitioner through parcel from Netherland, he is from the Kerala State - HELD THAT:- This Court has considered the entire material on record and detailed orders are passed and dismissed the petition. Except the contention that the petitioner’s father is unwell, there is no other additional ground addressed by the learned counsel for the petitioner. As per the records, seized drug is 150 gms which is 15 times more than the commercial quantity and worth of ₹ 15.00 lakhs. The alleged offence is a heinous one. If the petitioner is granted bail, there....... + More

Transfer of shares - pre-emptive right to purchase of shares - consideration of agreements which contains arbitration clause - HELD THAT:- It is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act - Detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts....... + More

Validity of Guidelines issued by the Institute of Chartered Accountants of India (ICAI) - specified number (Cap) of tax audit assignments - Seeking for transfer of several writ petitions pending in the Kerala High Court, Madras High Court and Calcutta High Court - validity of Chapter VI of Guidelines No.1CA(7)/02/2008 dated 08.08.2008 - disposal of writ petition on early date - HELD THAT:- The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. Cap on the number of audits - HE....... + More

Smuggling - Heroin - sentence of 15 years R.I. with fine of ₹ 2 Lakhs and in default to undergo further one year R.I. - HELD THAT:- In the present case the appellant - original accused was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity. 250 gm and above of Narcotic substance/drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned, it may be upto 20 years R.I. Therefore, the minimum sentence for commercial quantity shall not be less than 10 years, which may extend to 20 years with fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than....... + More

Dishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT:- The Hon’ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD [2007 (4) TMI 621 - SUPREME COURT] has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to....... + More

Request for proposal (RFP) for selection of distributors for conventional paper and online lotteries - conversion of the distributorship from online lottery to paper lottery - HELD THAT:- Lottery includes gambling as anelement of chance which requires no skill and as held by the Apex court it would not attain the status of trade like other trades or become res commercium. Accordingly, the petitioner has no right to invoke Article 14 of the Constitution of India or under Article 19(1)(g) of the Constitution of India seeking for his protection of his fundamental right for carrying on trade and commerce of the State lotteries. The petitioner is not entitled to objectand be heard by the respondent No. 1 while taking the impugned decision. The impugned decision dated 12.09.2018 does not in any manner injure the interest of the petitioner recog....... + More

Threat - Seeking issuance of directions to the official respondents for protection of life and liberty of the petitioners from the private respondents arrayed in the petition - HELD THAT:- Learned State counsel on instructions from ASI Amar Singh submits that the statements of the petitioners have been recorded by Deputy Superintendent of Police, Head Quarter, Ambala. It is stated therein that there is no threat perception. No cause of action survives for pursuing with the present petition - Disposed of as infructuous.

Dishonor of Cheque - burden to prove - onus to rebut the statutory presumptions under Sections 138 and 139 of the N.I Act - service of notice - Existing debt or not - HELD THAT:- It is a settled proposition of law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied. With regard to the service of statutory notice, accused pleaded that she did not receive any such notice after the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank ....... + More

Dishonor of Cheque - legally enforceable liability - rebuttal of presumptions under Sections 118(a) and 139 of Negotiable Instruments Act - HELD THAT:- The execution of the cheque was admitted; similarly, he had failed to prove the plea of discharge and since it was contended that the cheque was issued as security; both the arguments were not acceptable to the court and the learned Magistrate proceeded to convict the 2 nd respondent as stated supra. Against that conviction, when appeal was preferred, the learned Sessions Judge reversed the finding on various reasons. According to him, it was a house deposit scheme, which had completed in the year 2005, and therefore, there is no possibility of issuing a cheque as claimed by the appellant on 22.01.2008 - The Sessions Judge also noticed inconsistency with regard to the date of issuance of t....... + More

Dishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - whether the first respondent could rebut the presumption? - HELD THAT:- After revisiting the evidence, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of ₹ 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the....... + More

Dishonor of Cheque - Constitutional Validity of Appointment of the retired District & Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT:- The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Selec....... + More

Dishonor of Cheque - insufficiency of funds - compounding of offence under Negotiable Instruments Act - HELD THAT:- The law regarding compounding of offence under Negotiable Instruments Act is no more res integra and the offences under the said Act can be compounded at any stage of the proceedings. The Hon'ble Supreme Court in the case of K. M. Ibrahim vs. K.P. Mohammad and another [2009 (12) TMI 903 - SUPREME COURT] where it was held that Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque along with interest/ cost and he does not want to pursue the proceedings again....... + More

Sale of Electoral Bonds under the Electoral Bond Scheme, 2018 - Scheme allows the donors of political parties to maintain anonymity - seeking direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors - HELD THAT:- It is not correct to say that the RBI was opposed to the Scheme in principle. RBI’s objection was to the issue of bonds in scrip form rather than in demat form. What RBI wanted to achieve was, in their own words, the twin advantage of (i) providing anonymity to the contributor; and (ii) ensuring that consideration for transfers is through banking channels and not cash or other means. In fact RBI called Electoral Bonds as “an enduring reform, consistent with the Government’s digiti....... + More

Dishonor of cheque - insufficiency of funds - compounding of offences or not - Section 138 of NI Act - HELD THAT:- The Hon'ble Supreme Court in the case of KM. IBRAHIM VERSUS KP. MOHAMMED & ANR. [2009 (12) TMI 903 - SUPREME COURT] has held as under It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. The parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the entire amount of cheque as well as cost/ interest of ₹ 10,000/- , this Court deems it appropriate to compound the offence on the....... + More

Dishonor of cheque - rebuttal of the evidence of the complainant as regards payment, not produced - blank cheque given as security, in absence of adequate evidence, relevant or not - section 138 of NI Act - HELD THAT:- In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence. The Hon’ble Apex Court in HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque. As a corollary of findings, it can....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - failure to rebut the presumption - HELD THAT:- The complainant has proved his case by letting in cogent evidence. Whereas, the accused has failed to rebut the presumption u/s.139 of N.I.Act to prove his case. Though the accused had examined his brother as D.W.1, nothing is elicited. Further, the evidence of D.W.1 had infact fortified the fact that the accused had also constructed a house. It is a case of the complainant that the accused had borrowed money towards loan while he was constructing house and that in order to discharge his liability, he had issued a cheque. The the trial Court as well as the Appellate Court finding that the accused has not rebutted the presumption found him guilty for the offence under Section 138 of Negotiable Instruments Act and h....... + More

Breach of agreement entered into for sale of residential project - nearing completion project - Complainant Association has stated in the Complaint that the common facilities viz. Boundary wall, Medical Centre, Staff quarters, STP, Roads and Gardens which were promised are still not constructed and no effort was made by the Respondent Promoter to improve the infrastructure - complainant are seeking to enforce that the Promoter M/s. Serene Senior Living Pvt. Ltd. will complete the project as planned and provide residents with all infrastructure facilities - complainant also seeking relief in other complaints like Common facilities including club house, gardens should be handed over to the Association as per RERA Rules and also to attend warranty complaints. HELD THAT:- It is seen from the copy of the Construction Agreement for Flat No.C-10....... + More