Proceedings u/s 43 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 - penalty proceedings initiated by the concerned officer against the petitioner for alleged failure to disclose foreign income/assets - petitioner was in employment of Vodafone Idea Ltd. and claims that he received stock options from the parent company i.e., Vodafone Group PLC - as contented no undisclosed foreign income or assets and therefore, the provisions of the 2015 Act have been wrongly triggered. HELD THAT:- This inquiry vis-à-vis the petitioner, as per the record which is made available to us, has been going on since 27.02.2019, when summons under Section 131(1A) of the Income Tax Act, 1961 [in short, “1961 Act”] were issued. Petitioner claims that he has filed not one, but three responses, setting out ....... + More

Reopening of assessment u/s 147 - Assessment u/s 143(3) Completed - deduction u/s 80IA - HELD THAT:- While completing the original assessment, the Assessing Officer has called for various details, which were duly furnished by the assessee and by accepting the explanations/details of the assessee, the assessment was completed under section 143(3) - On perusal of the details furnished by the assessee, it is amply clear that the assessee has very well furnished earlier years returns along with complete details vide its letter dated 12.07.2016 against the notice issued under section 142(1) of the Act dated 14.06.2016. Therefore, the contention of the Department that the reopening was carried out on totally a new issue that was detected at a later stage while studying the earlier year’s return data, appears to be change in opinion. Again....... + More

Delay in depositing the Employees Contribution to Provident Fund and Employees State Insurance - Addition u/s 43B read with sections 2(24)(x) and 36(1)(va) - HELD THAT:- This issue have come to rest by the recent verdict of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] wherein it has been held that “deduction u/s 36(1)(va) in respect of delayed deposit of amount collected towards employees’ contribution to PF cannot be claimed when deposited within the due date of filing of return even when read with Section 43B of the Income-tax Act,1961 - Decided against assessee. Disallowance in respect of interest on delayed deposit of ‘taxes deducted at source’ (TDS) - AO observed that such payment of interest on delayed deposit of TDS was not an allowable deduction - HELD THAT:- Jurisdictional Calcutta High....... + More

Addition u/s 56(2)(viib) - application of Rule 11UA of the Income-tax Rules, 1962 to the valuation of FMV of redeemable preference shares - valuation of unquoted shares and securities other than equity shares which is based on a report from the merchant banker or an accountant - HELD THAT:- AO had called for a valuation report in the course of assessment proceedings which the assessee could not produce, leading to adverse view by the ld. Assessing Officer. However, the same was produced before the CIT(A) who took cognizance of the same and called for a remand report from the ld. AO who did not deal with it for expression of his views on the same. Before us, assessee referred to the valuation report issued by Pallavi Prasad & Associates, Chartered Accountants, dtd. 04/04/2014, wherein, valuation of preference shares has been arrived at....... + More

Disallowance u/s 14A r.w.r. 8D - As argued AO failing to enquire the allowability of relevant expenditure - HELD THAT:- it is imperative for the learned CIT(A) to consider the statement of the assessee that no expenditure is incurred for making and maintaining such a huge investment, and in that process, the learned CIT(A) has necessarily to delve deeper and record a satisfaction. There is a subtle difference between the learned Assessing Officer exercising jurisdiction 14A of the Act without recording satisfaction leaving it to be recorded by the learned CIT(A), and the learned CIT(A) looking into the aspect of learned Assessing Officer treating the exempt income as such but failing to enquire the allowability of relevant expenditure. This case falls in the second category whereas all the cases relied upon by the assessee fall in the fir....... + More

Time-limit for completion of assessment under section 153A - limitation to pass the assessment order - appointment of special auditor u/s. 142(2A) - whether the AO was justified to order the appointment of special auditor u/s. 142(2A) of the Act, and thereby getting additional time to frame the assessment in terms of explanation 1 (iii) to sub-section (3) of Section 153 of the Act? - HELD THAT:- As considering the relevant aspects that the reference by the AO to special auditor being bereft of plausible reasons for holding about the complexity of accounts and forming such opinion even without examining such accounts and the principals of natural justice being violated, the assessee being given no proper opportunity to object to such reference and even mechanical approval by the CIT, therefore, in the light of the legal proposition laid do....... + More

Disallowance u/s 14A r.w.r. 8D - expenditure incurred to earn exempt income - HELD THAT:- Averments made by the Ld. Authorised Representative for the Appellant are factually correct as the Appellant is a debt free company having sufficient own capital for making investments. In the case of ACB India Ltd. [2015 (4) TMI 224 - DELHI HIGH COURT] has held that only investments yielding exempt income during the relevant previous year are to be considered while computing the average value of investment for the purpose of Rule 8D(2)(iii) of the Rules. In the present case the Assessing Officer has taken into consideration the entire Investments. Accordingly, we set aside the addition made under Section 14A - AO is directed to re-compute disallowance under Section 14A read with Rule 8D(2)(iii) of the Rules by taking into consideration only the inve....... + More

Unexplained cash found at the residence of the assessee at the time of search - search team found physical cash at the premises of the assessee at the time of search - HELD THAT:- AO has not considered the statement given by assessee at the time of search proceedings, wherein he has explained the sources of cash found at the time of the search. We also notice that the AO has also not given any reason for disregarding the statement given by the assessee. In the statement, the assessee has explained that a sum of Rs.50,000/- belongs to all the family members. We are of the view that the statement given by the assessee should be given credence, since the addition has been made in his hands. As per the statement given by the assessee, a sum of Rs.50,000/- belongs to other family members, meaning thereby, the balance amount of Rs.49,900/- may ....... + More

Revision u/s 263 by CIT - advance written off under the head ‘cost of land’ - PCIT noticed that the AO did not call for any details with regard to the amount written off and the assessee did not furnish any evidence with regard to the advances received towards purchase of land and the reasons for write off - HELD THAT:- In the case under consideration the PCIT has exercised the revisionary powers u/s. 263 of the Act since he has noticed that the assessee has written off an amount as advance written off towards cost of land and there is nothing available on record to show that the AO had made any enquiries in this regard which is required to be done. We are therefore, of the considered view that the AO has not conducted the verification that “should have been conducted” during the course of assessment proceedings. R....... + More

Revision u/s 263 - Unexplained cash deposits - as submitted cash deposit made in his savings account was pertaining to cash sales of agricultural products - HELD THAT:- From the perusal of the invoices, it is evident that these invoices appear to be mere self-made invoices showing the sale of Mango, chikoo and dry raw coconut. We also find that two invoices issued to the same party on different dates have the same invoice number. This appears to be more than a mere coincidence. Further, apart from the name of the person to whom the assessee alleged to have sold the agricultural products, there is no mention of the address or village/town/city to which that person belongs, even though a huge quantity of aforesaid products has been alleged to have been sold. As regards the reliance placed on 7/12 extracts and land revenue records, we find t....... + More

Unexplained investments - certain documents were seized from the residence of assessee as per panchnama under Exhibit B1 and agreement to purchase (isar chitthi) stated to have been drawn between the assessee and another person - HELD THAT:- As during the course of assessment proceedings, there was a letter of confirmation issued by the Abdul Razzaq Haji Daud about the cancellation of agreement to purchase (issar chitthi) as well as non-receipt of Rs.1 lakh. It is to be noted that the contention of the assessee is that no amount was paid and the said agreement to purchase (issar chitthi) was only agreed to purchase said property in future. This aspect was not at all considered by the AO and the CIT(A) but both the authorities below went out to disbelieve the version of the assessee as an afterthought. Admittedly, the AO added an amount of....... + More

TP Adjustment - Determination of ALP - electricity supply bites captive power generation plant to its AEs - As contended internal CUP i.e., the rate at which the non-eligible unit and other AEs procured power in an uncontrolled transaction from an unrelated entity viz. APSPDCL, was the right basis for determination of Arms Length Price (ALP) - HELD THAT:- TPO himself conceded that the rate at which the assessee supplied the power to the APSPDCL during the financial year 2015-16 at Rs. 5.45 cannot be an uncontrolled transaction, TPO cannot ignore the transaction as submitted by the assessee between TGV Projects, Gauri Gopal Hospital and SRHHL with the APSPDCL at Rs. 8.98, Rs. 8.82 and Rs. 10.71 per unit cannot be ignored. At the same time the consistent view taken by the higher judicial fora and also the Tribunal in the cases referred to b....... + More

DRP not giving opportunity of being heard to the revenue as per provision of sec. 144C(11) - HELD THAT:- AO / TPO filed rectification application before the DRP raising certain contentions on merits. DRP has noted that the notices were issued to the AO, AO failed to appear on the date of hearing. DRP rejected the rectification application vide order dated 05.01.2015. Since notice of hearing was given to the AO / TPO and he had failed to appear, we see no merit in the contention raised in grounds 1 and 2. We dismiss grounds 1 and 2 raised by the Revenue. TP Adjustment - comparable selection - objection of RPT - HELD THAT:- Lotus Labs cannot be accepted as a comparable as it has significant RPT as per the financials of Lotus Labs for December 2010 sourced from the Ministry of Corporate Affairs Website and the year ending March 2010. Working....... + More

TP Adjustment - payments to its overseas associate enterprise “AE” in lieu of “Receipt of Advisory Services” - HELD THAT:- The assessee’s service agreement has remained the same throughout since 2003 onwards - We therefore conclude in this factual backdrop that the assessee has sufficiently proved to have received “advisory services” from its group entity(ies) and the learned lower authorities have erred in law and on facts in rejecting the same in entirety. We, accordingly, delete the impugned adjustment in these peculiar facts and circumstances. The assessee succeeds in its first and foremost grievance.

Income accruing or arising in India - dividend on IDR - assessee has received dividend from Indian entity and the dividend had accrued/ paid to the assessee in India - DRP and AO after examining the transaction, facts of the case and Article-10 of the India - Mauritius DTAA rejected assessee’s contention, that the dividend on IDR is taxable in Mauritius - whether the assessee would be eligible for treaty benefit, if yes, whether the transaction would fall within the meaning of Article-10 or Article-22 of the DTAA? - HELD THAT:- As in case Morgan Stanley Mauritius Co Ltd. [2021 (5) TMI 968 - ITAT MUMBAI] in a lucid manner explained the provisions of Article- 10 and Article-22 and thereafter explained as to how the transaction would not fall within the ambit of Article 10 and hence, is covered by residuary Article - 22. The Tribunal a....... + More

Revision u/s 263 - assessee has failed to explain the source of investment made for purchase of the immovable property - HELD THAT:- Assessee had furnished return of income for the year under consideration under presumptive taxation under section 44AD and disclosed required particulars. The Assessing Officer while passing the order has categorically mentioned that he had verified and examined the reply and documents furnished by the assessee. AO has further mentioned that the assessee had furnished written reply, copy of Income-tax return with computation of income, profit and loss account, cash flow statement, confirmation of accounts, receipts for sale consideration, agreement for sale, sale deed dated July 20, 2011 bank statements, etc. This finding and recording of these facts is not disputed by PCIT. Initial reply furnished by the ap....... + More

TP adjustment - Advertisement, Marketing and Sales Promotion Expenses [AMP] incurred by the assessee - DR concluded by saying that since the Tribunal in the preceding years has upheld the bench marking of AMP expenses by applying TNMM, the same may be applied in the year under consideration also but after making comparability adjustment on account of AMP expenses - HELD THAT:- We have to state that this Tribunal in for Assessment Year 2008-09 [2019 (1) TMI 1567 - ITAT DELHI] and in Assessment Year 2009-10 [2019 (2) TMI 2062 - ITAT DELHI] had the occasion to consider an identical quarrel and had the benefit of the decision of the Hon'ble Delhi High Court in the case of Sony Ericsson Mobile Communications India Pvt Ltd [2015 (3) TMI 580 - DELHI HIGH COURT] as held that the assessee being a full-fledged manufacturer, entire AMP expenditu....... + More

Assumption of jurisdiction by the A.O for framing of the assessment u/s. 143(3) - HELD THAT:- As in the case of the present assessee before us the impugned assessment had been framed by the ITO-1(1), Bhilai vide his order passed u/s.143(3) dated 29.12.2016 on the basis of a notice u/s. 143(2), dated 24.09.2015 that was issued by the DCIT-1(1), Bhilai, i.e., an A.O who at the relevant point of time was not vested with jurisdiction over the case of the assessee, therefore, the assessment so framed cannot be sustained and is liable to be struck down on the said count itself. Apropos the notice issued u/s.143(2) of the Act, dated 05.05.2016 by the ITO-Ward 1(1), Bhilai, we are of the considered view that as the said notice was issued after the lapse of the stipulated time period, i.e., beyond the specified time frame which expired as on 30.09....... + More

Transfer of Case / jurisdiction passed u/s 127 - Validity of Reopening of assessment notice - mandatory procedure to be followed u/s 127 by which the assessee is entitled to an opportunity of being heard before the assessment jurisdiction is transferred to the file of a different assessing officer - HELD THAT:- The language of Section 127 is clear that the assessee should be given a reasonable opportunity of being heard in the matter before the power under Section 127 of the Act is invoked. The statute is also clear that such opportunity of being heard is to be given wherever it is possible to do so. If the authority proposes to dispense with the opportunity of hearing, the statute states that reasons have to be recorded for not providing such an opportunity. On perusal of the order impugned in the writ petition dated 29th June, 2021, we ....... + More

Condonation of delay in filling appeal before HC - present appeal filed after a delay of 109 days - only explanation provided for such delay that the delay of few days in filing the appeal is due to the administrative reasons beyond the control of the Appellant - HELD THAT:- We are unable to accept that the delay in filing the appeal can be condoned for the aforesaid reasons. It is settled law that each day of delay has to be explained. The appellant has not given sufficient explanation for the delay of 109 days. The fact that the appellant has casually termed the delay of 109 days as a delay of only of “few days” clearly indicates the lack of seriousness on the part of the Revenue in adhering to timeline stipulated under the Act. The application is accordingly dismissed. Revision u/s 263 - As per CIT provisions of Section 56(....... + More

TP Adjustment - comparable selection - exclusion of Motilal Oswal Advisors India Pvt. Ltd (MOIALP) and the inclusion of IDC India Limited (IDCL) and ICRA Management Consulting Services Ltd (ICRA) as comparables for benchmarking of Arms Length Price (ALP) of investment advisory services rendered by the Respondent - HELD THAT:- Admittedly, the Respondent-assessee is engaged in the business of non-binding investment advisory services as against Motilal Oswal Advisors India Pvt. Ltd, which is engaged in merchant banking, securities brokering and other IT-enabled services. DRP held that Motilal Oswal Advisors India Pvt. Ltd (MOIALP) be taken out from the list of valid comparables. In regard to ICRA Management Consultancy Services (ICRA) and IDC India Limited (IDCL), DRP held that the functions performed by ICRA were different from the function....... + More

Deduction u/s 80P - investments made in TIDCO and TNEB Bonds - case of the appellant that Section 80P(2)(a)(i) of the Act does not limit or confine the benefit of deduction only in respect of investments made in SLR - Non SLR investment would have to be tested on the basis of Section 80(2)(d) - whether the benefit under Section 80P(2)(a)(i) is available only in respect of SLR investments and not to non- SLR investments? - HELD THAT:- It has been consistently held by various Courts that as long as it is Banking Business, the investment, whether it is SLR or non SLR may not make a difference - We are informed that there is no contrary view expressed in respect of the above issue. Yet another reason why we would think that the assessee must succeed is in view of the fact that Income Tax Act, being a Central Enactment, though normally, decisi....... + More

Accrual of interest income - Real income received / receivable by the company on inter corporate deposit - Assessment u/s 143 - real income or hypothetical income - Assessee claims that no real income accrued to the company and merely as the assessee is following mercantile system of accounting it does not result in accrual of income from interest when there is no interest in real terms and the statement of the accounts of the assessee also did not reflect any credit entry in respect of interest receipt from the borrower - HELD THAT:- Tax Authorities below have failed to keep in mind the fundamental principles of taxation that only real income should be taxed and not the hypothetical income. What the Ld. Tax Authorities below have considered to be income arising from interest to be taxable on accrual basis would be a case where interest a....... + More

Validity of Assessment as notice u/s.143(2) issued being beyond the prescribed time limit of 6 months from the end of the financial year - CIT-A dismissed the appeal of the assessee for non-prosecution - assessee had failed to put up an appearance in the course of hearing of the appeal, therefore, the same was disposed off on an ex-parte basis - HELD THAT:- CIT(Appeals) had disposed off the appeal on the basis of a non-speaking order. As it is not open for the CIT(A) to summarily dismiss appeal on account of non-prosecution of the same by the assessee. Rather a perusal of Sec.251(1)(a) and (b), as well as the “Explanation” to Sec. 251(2) reveals that the CIT(A) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law the CIT(A) is not ve....... + More

Deduction u/s 54F - CIT-A deleted the addition - whether CIT(A) erred admitted additional evidence without confronting with the AO is in violation of Rule 46A of the Income Tax Rules, 1962 and wrongly allowed the claim of deduction - HELD THAT:- We find that the assessee has furnished various details and produced documents before the ld. CIT(A) for the first time and the ld. CIT(A) should have called for remand report from the Assessing Officer. However, by considering the details furnished by the assessee, the ld. CIT(A) has deleted the addition made by the Assessing Officer appears to be in violation of Rule 46A of the Income Tax Rules, 1962. Accordingly, we set aside the appellate order and remit the matter back to the file of the AO to reconsider the entire facts and material evidences as may be furnished by the assessee and decide th....... + More

Realization of its Input Tax Credit (ITC) in the electronic credit ledger of the petitioner as for the Financial Year 2018-19 last date for availing ITC as per provisions under Section 16(4) of Jharkhand Goods & Service Act, 2017 - violation of Section 16(4) of JGST Act, 2017 or not - violation of principles of natural justice or not - HELD THAT:- It appears that a show cause notice under Section 73(1) of the Act dated 12.02.2022 (Annexure-1) was issued to the petitioner which was issued in a format without striking out the irrelevant particulars and thus, there won’t be an exaggeration in treating the same as vague as it does not spell out the contraventions for which the petitioner is charged. As a matter of fact, it is worse than the summary of show cause notice issued under FORM GST DRC-01 of the even date (Annexure-2). It f....... + More

Cancellation of their respective GST Registrations of petitioners - cancellation on the ground that the said appeals were filed beyond the maximum time limit stipulated under section 107 of GST Act - Difference of opinion. HELD THAT:- While dealing with the very same issue, one of the Hon'ble Single Judges of this Court (Anita Sumanth, J.) in MR. PANDIDORAI SETHUPATHI RAJA VERSUS THE SUPERINTENDENT OF CENTRAL TAX, CHENNAI [2022 (12) TMI 1028 - MADRAS HIGH COURT] held that this Court is having the power to condone the delay in filing the appeal under section 107 of the GST Act under certain extraordinary circumstances mentioned in the said order. However, another Hon'ble Judge of this Court in HEMASRI ENTERPRISES REPRESENTED BY ITS PROPRIETOR SAKTHI NARAYANAN VERSUS THE APPELLATE AUTHORITY / THE DEPUTY COMMISSIONER (ST) (FAC) GST-A....... + More

Detention of goods alongwith vehicle - whether section 129(3) of the Central Goods and Services Tax Act, 2017 was adhered to by the respondents or not? - HELD THAT:- As seen from section 129(3) of the Central Goods and Services Tax Act, 2017, the proper officer after detaining the goods or conveyance shall issue a notice of such detention or seizure specifying the penalty payable and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of Sub-Section (1) of Section 129. In the instant case, after detaining the petitioner's vehicle and the goods on 26.10.2022, notice was issued by the respondents on 31.10.2022 within seven days from the date of detention. However, the consequential order for payment of penalty was passed only on 10.11.2022....... + More

Confiscation of goods u/s 130 - Levy of penalty - goods in question were supported by valid documents - whether warrant exists for initiation, continuation and conclusion of proceedings under Section 130 of the CGST/SGST Acts or not? - HELD THAT:- The undisputed facts of the case are that the 2nd petitioner was carrying certain gold ornaments in a train from Thrissur to Alleppy. He was initially intercepted by the officials attached to the Railway Protection Force and the 2nd petitioner was able to only shown certain documents on his mobile phone, which according to the petitioners, suggest that the gold ornaments were being carried in a valid manner and in accordance with all the requirements of the CGST/SGST Acts and the Rules made thereunder. The contention of the learned counsel appearing for the petitioners that the 2nd petitioner ha....... + More

Betting/gambling - Actionable claim - whether nature of gaming services as provided by it is in the nature of services or an actionable claim or not? - HELD THAT:- A Division Bench of this Court in CHANDRESH SANKHLA VERSUS THE STATE OF RAJASTHAN AND OTHERS [2020 (2) TMI 1062 - RAJASTHAN HIGH COURT] in respect of a similar company Dream11 which also provided gaming services online held that the issue is no longer res-integra and as such gaming services are not in the nature of betting/gambling. Some of the games offered by the petitioners online have already been held to be games of skill rather than that of chance or that of betting/gambling. Thus when the matter is so settled by various Courts, the issuance of the impugned show cause notice is nothing but an abuse of the process of law. Accordingly, we call upon the respondents to file c....... + More

Seeking release of confiscated goods - whether the authority was justified in holding that the appellant is not the owner of the goods? - HELD THAT:- The appeal is disposed off with a direction to the appellant to file an application before the Deputy Commissioner of State Tax, Goods and Services Tax, Bureau of Investigation, South Bengal, Durgapur zone seeking relief under Section 129(1) (a) of the said Act and such application shall be filed within one week from the date of receipt of the server copy of this judgment and order. On receipt of the said application, the said authority shall independently consider such a prayer uninfluenced by any of the observations made in its order dated 12th December, 2022, which is subject matter of the writ petition and such order shall be passed within a period of 10 days from the date on which the application is filed by the appellant. Appeal disposed off.

Maintainability of appeal - non-compliance with the requirement of pre-deposit - Attachment of Bank accounts of appellant - Initiation of garnishee proceedings - HELD THAT:- When the appeal was presented, the mandatory pre-deposit of 10% of the disputed tax has been complied with by the appellant. If that be so, no coercive action should be taken against the appellant till the appeal is heard and disposed of. In terms of the above direction, the appellant is granted liberty to file an appropriate interim application in the appeal petition and the appellate authority shall consider the same and pass appropriate orders for the purpose of lifting the garnishee order and the bank attachment. The appellant shall file the application in the statutory appeal not later than 10th February, 2023. Appeal disposed off.

Seeking grant of Anticipatory Bail - It is submitted by learned counsel for the applicant that proceeding u/s 74 of CGST Act is still pending, he is cooperating with the investigation/enquiry and did not misuse the liberty of aforesaid interim anticipatory bail which was granted on 22.03.2021 by the Coordinate Bench of this Court. HELD THAT:- Learned AGA for the State does not dispute the aforesaid factual aspect of the matter as argued on behalf of the appellant. The aforesaid interim anticipatory bail order dated 22.03.2021 is made absolute till finalization of proceedings on the terms and conditions as indicated in the above order dated 22.03.2021 - the instant anticipatory bail application is allowed.

Maintainability of petition - availability of alternate efficacious remedy under Section 107 of the respective GST Enactment - Detention of goods alongwith vehicle - HELD THAT:- The petitioner claims to be a transporter who was transporting goods for a dealer from the Tiruppur District in Tamil Nadu to a recipient in Hyderabad, Telangana. The consignment of Ready-Made Textile/ Hosiery Garments were being transported by the appellant for an unknown consignor and consigneer whose name has been later given as Star Handlooms in the affidavit filed in support of the Writ petition. About 58 bundles of Textile/ Hosiery Garments were being transported by the appellant and that out of 58 bundles 33 did not accompany necessary documents including invoices. For the balance, it can be inferred there was only lorry receipts. Under these circumstances,....... + More

Cancellation of the Registration Certificate of petitioner - failure to file Goods and Services Tax monthly returns for a continuous period of six months - HELD THAT:- In identical circumstances, this Court, in the case of TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. [2022 (2) TMI 933 - MADRAS HIGH COURT] had held that The petitioners are directed to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the ....... + More

Classification of supply of service - composite supply or not - activity of design and development of patterns used for manufacturing of camshaft for a customer - intermediary service or not - non-speaking order - violation of principles of natural justice. Whether activity of appellant is an intermediary service as held by the MAAR or as contended by the appellant, an activity of design and development of patterns/tools used for manufacturing of camshafts, for a overseas customer is a composite supply where the principal supply is supply of services? HELD THAT:- It is appellant who prepares the drawing and designs of tool / pattern and also check feasibility of its manufacturing. The techno commercial offer is being made by the appellant to overseas OEM / Machinist. Overseas OEM / Machinist releases the purchase order, for specific numbe....... + More

Classification of supply - zero-rated supply - supply of renting of immovable property services provided by the SEZ Authority - supply of any other services by the suppliers located in DTA to the SEZ unit - reverse charge mechanism - section 16(1) of the IGST Act, 2017 - HELD THAT:- On perusal of the provisions of the zero-rated supply under section 16(1) of the IGST Act, 2017, it is clear that any supply of goods or services or both made to a SEZ developer or SEZ unit for carrying out the authorised operation in SEZ will be considered as zero-rated supply. That is, the said supply will not attract any GST whatsoever. It is further mentioned here that this provisions of zero-rated supply will cover even the supply of services which are specified under the reverse charge Notification 10/2017-I.T. (Rate) dated 28.06.2017 as amended by Notif....... + More

Seeking return of money recovered / taken away during search - It is contended by the petitioner that the concerned officers could have no reason to believe that any goods liable for confiscation were lying in the premises of the petitioners - whether cash can be seized by the officers under Section 67(2) of the GST Act? - HELD THAT:- Prima facie, a plain reading of Section 67(2) of the GST Act indicates that the seizure is limited to goods liable for confiscation or any documents, books or things, which may be “useful for or relevant to any proceedings under this Act”. Clearly, cash does not fall within the definition of goods. And, prima facie, it is difficult to accept that cash could be termed as a ‘thing’ useful or relevant for proceedings under the GST Act. The second proviso to Section 67(2) of the GST Act a....... + More

Validity of impugned order passed without granting personal hearing - breach of principles of natural justice (audi alterem partem) - non-application of mind - HELD THAT:- From perusal of the impugned order dated 23/09/2022, it can be seen that it is one of those blatant cases of breach of principles of natural justice and total non-application of mind. The only reason assigned in the impugned order is that the reply filed by the petitioner is not acceptable and no tax has been deposited by the petitioner, therefore, the reply is rejected. Admittedly, as per Section 75(4) of the Act, personal hearing is mandatory before passing any adverse order against the assessee. In the circumstances, there are no reason why to wait for the respondents to file the reply and prolong the agony of the petitioner and also waste precious judicial time. If ....... + More

E-way Bill - Period of limitation for expiry of E-way Bill - Constitutional validity of rule 138(10) of the Central Goods and Services Tax Rules, 2017 / Gujarat Goods and Services Tax Rules, 2017 - restriction imposed on validity period of the e- way bill in terms of distance to be travelled in a day - HELD THAT:- The respondent had challenged the authority of the respondent demanding the tax and penalty under Section 129(3) of the Central Goods & Services Tax Act, 2017, where the goods, which were to be delivered on or before 17.10.2022, could not be delivered in time and on 19.10.2022 when inspected, some of the e-Way bill numbers had shown expired. The entire truck along with the goods had been seized on account of expiration of the e-Way bill. Therefore, the Court had, after a detailed consideration, held that e-Way bill had expir....... + More

Refund along with interest - It is the petitioner’s case that the refund due to it has not been processed by the respondents as its GSTN registration has been incorrectly reflected as suspended - HELD THAT:- It is submitted on behalf of the respondents that the form GSTR-2A is not in the correct format. Concededly, the counter affidavit does not indicate any specific deficiency in the form as uploaded by the petitioner. Admittedly, form GSTR 2A is a system generated form. It is stated that certain columns in the form GSTR 2A are blank and therefore, the application for refund has not been processed. According to the petitioner, the form GSTR 2A, as visible at its end, reflects all relevant particulars. The learned counsel appearing for the petitioner states that the scanned copy of the said form (GSTR-2A.pdf) was uploaded along with....... + More

Unblocking of Input Tax Credit - seeking directions regarding refund claim - HELD THAT:- We have already discussed the implications of the order dated 13 September 2022 which has already been acted upon and there was no challenge to the said order, though the learned counsel for the Respondent No.1-State has sought to contend that State has not been given opportunity to contest the case, the Respondent-State has permitted to utilize the account. It is not possible for us to reverse the effect of the order dated 13 September 2022 as it has already been given effect to by the Respondents without challenging the said order. Though Petitioner states that amount more than what was prayed was allowed to be utilized, we do not find anything on record regarding the same nor the prayer is amended. Writ petition is disposed off.

Migration of TDS Credit from VAT to GST - Transitional provisions - whether the deduction is a credit of the amount of value added tax which a registered person is entitled to migrate in its electronic credit ledger? - HELD THAT:- The transitional provisions are made to make special provisions for the application of legislation to the circumstances which exist at the time when the legislation comes into force. In the case of UOI. VERSUS FILIP TIAGO DE GAMA OF VEDEM VASCO DE GAMA [1989 (11) TMI 307 - SUPREME COURT], it has been held that transitional provisions are to be purposefully construed and the paramount object in statutory interpretation is to discover what the legislature intended and this intention is primarily to be ascertained from the text of the enactment in question. It is in the aforesaid background that the provisions of S....... + More

Unblocking of Input Tax Credit Account - case of petitioner is that the proceedings under Section 73/74 of the Central Goods and Services Tax Act, 2017 (CGST) was the appropriate remedy and the account should not have been blocked - HELD THAT:- Since the order dated 13 September 2022 directing unblocking of the account was in the nature of final order and that thereafter the Petitioner has unblocked the account, it was put to learned counsel for the State that what is the implication thereof as to the course of action to be taken in the present petition, apart from question of law. Question would also be regarding returns for the next year to be filed. It is pointed out to us that action of blocking under Rule 86A(3) is for period of one year. As regards one of the suppliers, account was blocked on 21 October 2021 and other suppliers it was on 14 March 2022. Stand over to 20 December 2022 under the caption “For Directions”.

Detention of petitioner's goods - whether there is an error in the E-Way Bill inasmuch as it does not reflect the name of the consignee but merely mentions the petitioner’s GSTIN number, or not? - HELD THAT:- Admittedly, there has been no mismatch in the quantity of the goods found in the vehicle and the invoice produced. However, according to the respondents, the goods were not accompanied by an E-Way Bill. Although this is stated in the counter-affidavit, the said fact does not find mention in the order of demand dated 23.10.2020 or the order dated 31.12.2021, passed by the Appellate Authority. The learned counsel for the petitioner also submits that there is an error in the E-Way Bill inasmuch as it does not reflect the name of the consignee but merely mentions the petitioner’s GSTIN number. She submits that the E-Way B....... + More

Recovery of Validity of Audit Consultative Letter issued as per the provisions of Section 28 of the Customs Act, 1962 - pre-notice consultation - import of Horse Feed - exemption from payment of IGST Duty? - HELD THAT:- As no final decision has been taken till date by the respondent as to whether a notice contemplated under Section 28(1) of the Customs Act, 1962 has to be issued to the petitioner or not with regard to the recovery of duties not levied or not paid or short levied or short paid or erroneously refunded, the question of entertaining this writ petition, at this stage, will not arise as the petitioner has approached this Court pre-maturely. However, the respondent will have to necessarily give due consideration on merits and in accordance with law to the contentions raised by the petitioner in this writ petition that the horse feed is exempted from payment of IGST Duty. This writ petition is disposed of on the ground that the writ petition has been filed pre-maturely.

Withholding of final reward - petitioner's claim as a legal heir - establishment of identity - HELD THAT:- It is not in dispute that the information was received which led to the successful seizure of the smuggled goods. The Informer for this seizure was therefore entitled to final reward. It is not the case of the Respondents that there is some other person entitled to final reward. Most importantly, two interim rewards have been released. They are obviously released after establishing the identity of the Informer. No explanation is being offered on this count. Except for disputing the Informer's identity, the Respondents have not positively stated that the interim reward was released to some other person and not the Petitioner's husband- Chandrakant. The Petitioner has given a reasonable explanation for variances in the sign....... + More

Refund of Special Additional Duty of Customs (SAD) - Can the refund can be claimed after the period prescribed by the Notification No.102/2007-Cus. dated 14.09.2007? - HELD THAT:- It is the first principle of law that justice must not only be done but must also be seen to be done. It is clear from the impugned order that the appellant has not been heard, for whatever reason, and without following the principle of natural justice, the appeal has been decided against the appellant. There are force in the submissions of learned Counsel that this ground itself is sufficient for setting aside the impugned order and therefore without going into the merits of the matter, the case is remanded to the 1st Appellate Authority to decide the Appeal afresh after giving due notice to the appellant for personal hearing and also giving sufficient opportunity of hearing to the appellant. The appeal is accordingly, allowed by way of remand to the Commissioner of Customs (Appeals).

Non-clearance of consignment of soyabeans imported by the Petitioner from Mozambique - petitioner has sought to contend that the Food Standards Act, 2006 being a later legislation would prevail over the Environment Protection Act, 1986 - HELD THAT:- Considering the larger implications of the issue at hand and that no specific stand of the Genetic Engineering Approval Committee and the Ministry of Environment and Forests and Climate Change (MoEF&CC) in respect of the subject matter is on record, it would be appropriate that the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee and the MoEF&CC are impleaded in this Petition. Accordingly, we grant leave to the Petitioner to add the Food Safety and Standards Authority of India, the Genetic Engineering Approval Committee, Ministry of Health & ....... + More

Seeking a composite license for import and trading of restricted items and had paid the requisite fee for the same - actual user condition - permission to import and avail of the remaining guns which could not be imported, by way of an extension of the license by for a period of one year at least - HELD THAT:- Considering the fact that the reliefs sought in both the writ petitions, when they were filed, have almost being satisfied and the outstanding issues relating to extension of license are pending before the DGFT, it is deemed appropriate to direct the DGFT to take a decision on the said application for extension of the licence within a period of two months from today. The DGFT may afford the Petitioner a hearing and pass a reasoned order in accordance with the Act and Rules. Demurrage which the Petitioner incurred during the period o....... + More

Advance License Scheme - actual user condition - sourcing Lauryl alcohol either through indigenous purchase on payment of appropriate excise duty or it is imported under advance licence without payment of duty or it is imported on payment of customs duty - N/N. 30/97-CUS dated 1 April 1997 as amended by Notifications upto No.63/2004-CUS dated 14 May 2004 - HELD THAT:- The question of breach of paragraph 7.4(ii) of the EXIM Policy which clearly provides that Advance Licences and / or materials imported thereunder shall not be transferable even after completion of the export obligation would not arise. Also, the question of breach of paragraph 7.16 of the EXIM Policy which pertains to actual user condition and provides that the licences granted under this scheme are subject to actual user condition till endorsement of transferable by the Li....... + More

Amendment in the shipping bill - Export Obligation against the Advance Authorisation - Duty Drawback scheme - Section 149 of the Customs Act, 1962 - HELD THAT:- The judgment under appeal principally proceeded on the extent to which a Circular could prescribe the limits within which a request for amendment of Customs documents can be made. In the case on hand, respondents endeavour to elevate Circular No. 36/2010 to the level prescribed by the regulation. The definition clauses define what constitutes “prescribed” and ‘regulations’. The onus is on the respondents to demonstrate that irrespective of the year in which Circular no. 36/2010 was issued, the Circular still satisfies as one issued as a regulation under the Act by the Competent authority. The reading of Circular No.36/2010 looks more like guidelines for the....... + More

Change in classification - buttons imported as snap buttons - consideration changed from Sl.Nos.232 to 282 - argument of petitioners is that the change of expression in Sl.No.282 of Notification No.12 of 2012 is not the deciding factor and the deciding factor is whether the entry under which the import has been permitted, and exemption has been extended continues to be in operation even under Notification No.12 of 2012 - HELD THAT:- The answer to the said question will not invite long deliberation. It may be noticed and recorded from the exhibits filed by the petitioner in the writ petition that the petitioner continues to import snap buttons. The product imported by the petitioners under the subject bills of entry is not claimed as stated differently from the goods imported by the petitioner in the first round of litigation. After apprec....... + More

Levy of Anti-dumping duty - exports by Xinyi Energy - submission is that its exports to India by Xinyi Energy are not at dumped prices, and the determination of the dumping margin by the designated authority in the final findings is erroneous for the reason that it is based on a faulty determination of the normal value and export price. Whether the designated authority was justified in making deductions from the export price of Xinyi Energy on account of liaison office? - HELD THAT:- A person who is not a resident of India can open a branch office or a liaison office only with the prior approval of the Reserve Bank of India and in accordance with the Regulations. Secondly, the liaison office cannot undertake any commercial/trading/industrial activity directly or indirectly. The domestic industry has not brought on record any evidence to s....... + More

Benefit of exemption from health cess under Notification No. 08/2020-Cus have been wrongly refused to them - import of SPECTROMETERS (MODEL 800MB) and parts thereof - HELD THAT:- Admittedly, appellant have not claimed the exemption in the Bill of Entry, secondly, these new evidences have been brought before this Tribunal for the first time. Accordingly, these appeals are allowed by way of remand to the Commissioner (Appeals), with the direction to peruse the evidence laid before him by the appellant-assessee and on being satisfied that these spectrometers have not been used for medical purpose, shall allow the exemption accordingly. Accordingly, the appeals are allowed by way of remand.

Interest on the refund amount of pre-deposit - rejection on the ground that original copy of bill of entry and TR-6 challan could not be made available - HELD THAT:- The learned Commissioner (Appeals) have rightly held that the amount remained with the revenue unadjusted by way of pre-deposit. It is further found under the facts and circumstances, that such pre-deposit was made under protest which is writ large on the face of the record. There is no merits on the grounds of appeal raised by revenue. Relying on the ruling of the Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], the Cross-objections with directions to the revenue to grant interest @ 6% per annum from the date of deposit till the date of refund. Such int....... + More

Violation of conditions of Exemption notification - ‘flying training' Aircraft - Allegation of misuse for ‘charter service’ - Confiscation of eight CESSNA 172R Aircrafts with redemption fine imposed - recovery of import duty forgone on the import of eight CESSNA Aircrafts import duty forgone on imports of spare parts for maintenance of the said aircrafts with interest - levy of penalty - acts of omission and commission - Jurisdiction of customs authorities to decide violation of the exemption notification. HELD THAT:- the appellant had initially imported Aircrafts for flying training purpose and had given such an undertaking to the customs authorities. The DGCA had also granted permits to the appellant. It is subsequently on 23.04.2009 that the appellant submitted an application before the MCA for grant of a No Objec....... + More

Auction of goods - unpaid seller which had shipped Aluminium Scrap through shipping line - Seeking to permit the re-export of import container arrived at ICD Sabarmati as due to unavoidable circumstances - HELD THAT:- Considering the issue of right of the unpaid seller, we firstly need to direct the impleadment of the buyer Ghanshyan Metal Udyog, Survey No. 36/1, Kuha Road, Singarva, Ahmedabad 382430, Gujarat, India. Let the amendment be carried out in the cause title. Issue Notice to the respondents making returnable on 20th January, 2023.

Seeking quashment of proceedings against Managing Director of the Company, one of the vendors of RFID e-seals - Tampered e-seals - it is alleged that the e-seals supplied by the Company were passing customs clearances even when it was not in a locked condition - liability of Managing Director of the Company in the alleged offence - HELD THAT:- The Company was in-charge of manufacture of RFID e-seals and tampering alert was in the control of the Company in which the 2nd petitioner is the Director. It becomes germane to notice the Circulars issued by Government of India in the Department of Revenue of the Central Board of Excise and Customs with regard to the export procedure and sealing of containerized cargo from time to time. The communication was clear that the DRI has critically examined RFID e-seals supplied by M/s Leghorn Group, Ital....... + More

Levy of Anti-Dumping Duty - effective date of the notification -import of two consignments of Propylene Glycol from USA falling under CTH 29053200 - N/N. 117/2009-Cus., dated 13-10-2009 extending the N/N. 105/2004-Cus., dated 8-10-2004 - HELD THAT:- The issue involved in the present matter is whether Anti-dumping duty on Propylene Glycol, which was imposed by Notification No. 105/2004 dtd. 08.10.2004 and which came to an end on 08.10.2009 by virtue of Section 9A(5) of the Customs Act, 1962, can be demanded in respect of goods imported after 08.10.2009, when the same had not been extended before the said expiry on 08.10.2009 and whether the extension after the said expiry by Notification No. 117/2009 dtd. 13.10.2009 is valid in law. The demand confirmed by the adjudicating authority is not sustainable - Appeal allowed.

Classification of goods - 0.1 percent natural brassinolide fertiliser - Nature and scope of SCN under section 28 of Customs Act - power of proper officer to review the assessment under section 28 - Whether SCN under section 28 can be issued after the assessment is finalized (either through self assessment or through assessment by an officer) without first appealing against the assessment? - extended period of limitation - penalties. Scope of remand - HELD THAT:- There is nothing in the order of remand to show that the Commissioner was required to examine Chapter Note 1(a) (2) of Chapter heading 3808 partly only to the extent of the submissions by the learned counsel. The submission of the learned counsel that the scope of the Tribunal’s order gets circumscribed by the appellant’s submissions during the proceedings cannot be ac....... + More

Illegal smuggling of goods - Seeking grant of Injunction restraining the Respondents, their Agents, Servants and Subordinates from acting and/or taking any action of any nature whatsoever, pursuant to or in furtherance of the Impugned order - HELD THAT:- It is pertinent to note that the Division Bench also considered the contention of the Petitioners therein of entertaining the Petition in writ jurisdiction in light of the grievance of non-granting of cross-examination. After considering this grievance, the Division Bench opined that an Appeal was maintainable and passed necessary orders regarding the filing of an appeal and pre-deposit as stated above. To maintain consistency, since this Court has taken a particular view in the case of other noticees with similar grievance, we are inclined to dispose off the Writ Petition with the same r....... + More

Confiscation of imported aircraft - non-scheduled operator permit (charter) issued by the Directorate General of Civil Aviation [DGCA] - levy of customs duty and penalty under section 112 of the Customs Act - HELD THAT:- Aircrafts and helicopters are classified under Customs Tariff Heading 88 of the First Schedule to the Customs Tariff Act, 1975. The tariff rate of duty till 28.02.2007 on the import of aircraft was 3%/12.5%. Subsequently, pursuant to the proposal made in the Finance Bill 2007, exemption notification no. 20/2009 dated 01.03.2007 was issued inserting Entry 346B and Condition No. 101 in the earlier exemption notification dated 01.03.2002, whereby, the effective rate of duty on import of aircraft for scheduled air transport service was made ‘nil’. No exemption was, however, granted to nonscheduled air transport se....... + More

Seeking release of smuggled confiscated goods - Whether the Tribunal was justified in recording a finding that the fact that seized fabrics might have lost its importance due to storage for more than four years without there being any evidence on record to support that finding? - HELD THAT:- The Appellant is not entitled to succeed even on the re-framed questions of law. Though the learned Counsel for the Appellant has sought to address us as to the various factual aspects, we have to keep in mind the scope of the appeal. Whether the goods seized under a panchanama were validly imported is a question of fact. It is settled that the scope of reversing an order of the Tribunal on a finding of fact is extremely limited and is restricted to ascertaining whether the finding of fact is demonstrably perverse or that it is not possible to reach s....... + More

Freezing of Bank Account of petitioner - non-release of the export shipment made by the petitioner - representation requesting for de-freezing of his bank account as per the provisions of the section 110A of the Customs Act, 1962 not been considered - HELD THAT:- No prejudice would be caused to the respondents, if the petitioner's representations seeking for release of the subject export consignment as well as for de-freezing the petitioner's bank account is considered on merits and in accordance with law, within a time frame to be fixed by this Court. This Court is not expressing any opinion on the merits of the petitioner's representations as it is contended by the learned Standing Counsel appearing for the respondents that Air Customs Investigating Unit is investigating the subject export consignment of the petitioner as we....... + More

Seeking cancellation/ rectification of the name of Respondent No.3 - seeking cancellation on the ground that it resembles the name of its company and its business - Validity of incorporation of the Respondent No.3 under the name ‘Purecure Pvt. Ltd.’ which was incorporated on 11th April, 2020 - HELD THAT:- A perusal of Section 4(2)(a) as also Section 16 of the Companies Act, 2013 makes it clear that the name of a company which too nearly resembles an earlier existing name cannot be allotted to a company. The purpose of these two provisions is to ensure that companies do not register names which are identical or similar to earlier registered corporate names or registered trademarks so as to avoid any confusion in the market place between similarly sounding or identical businesses. The perusal of the two names, in the present cas....... + More

Quantification of time limitation in terms of section 468 of Cr.P.C - Prayer to seek CLB's directions to investigate into the affairs of the respondent companies under Section 237(b) of the Companies Act, 1956 - likelihood of the existence of malpractices envisaged in clauses (i) to (iii) of Section 237(b) of the Companies Act - Whether the period commencing from 26.11.2007 to 03.06.2008 i.e. the date on which the SFIO submitted its report to MCA and the date on which MCA convyed SFIO to file a complaint respectively, is to be excluded for the purposes of counting limitation in terms of Section 468 of the Cr.P.C.? HELD THAT:- Section 242 of the Companies Act prescribes that if from any report made under Section 241, it appears to the Central Government that any person has, in relation to the company or in relation to any other body co....... + More

Validity of prosecution against the petitioner/director - post held by the petitioner on the date of filing the report - Non-furnishing of furnish fullest information and explanation by the Board of Directors in their Director’s report with respect to the Auditors in their report on Balance Sheet for the year ending on 31st March, 2014 - rejection of prayer of the petitioner for discharge, inter alia, on the ground that the proceedings being Summons triable he is not empowered to direct discharge of the accused persons. What post was being held by the petitioner on the date of filing the report? - main contention of the petitioner is that he was not attached to the company in the financial year 2013-2014 and as such he is not liable in any manner what so ever - HELD THAT:- An Additional Director is a director having the same powers,....... + More

Seeking sanction of scheme - seeking a direction to dispense a Meeting of the Secured Creditors of the Appellant and for directions to convene the Meetings of the Equity Shareholders, Preference Shareholders and Unsecured Creditors of the Appellant, for the purpose of consideration of the Scheme - Section 421 of the Companies Act, 2013 - HELD THAT:- This Tribunal do not find any irregularity or infirmity, in the directions passed by the Tribunal (National Company Law Tribunal). The Regional Director, is a Public Authority, looking after the interest of the Public/Shareholders/Investor at large, and if there are any observations, made by the Regional Director that there were irregularities and non-compliances that were present, it is imperative that the Company must comply with the provisions of Law, and not to violate, any Public Policy, ....... + More

Filing of form AOC-4 which was required to be filed within 30 days of the Annual General Meeting (AGM) as per Section 137 of the Companies Act, 2013 read with Rule 12 of the Company (Accounts) Rules, 2014 - it is prayed by the Petitioner that an extension be given to the Petitioner for uploading the said documents without any additional fee of penalty - HELD THAT:- The overdue e-forms were allowed to be deposited by 31st March, 2021 without additional payments. After perusing the said documents, it appears that the Petitioner was not ready to upload these documents either on 31st December, 2020 or even within the extended period of 31st March, 2021 - this Court does not see any merit in the prayer of the Petitioner for permitting to file the form AOC-4 or Form MGT-7 in respect of its AGM dated 28th September, 2019 without additional fee and penalty. The present writ petition is without any merit and is, accordingly, dismissed.

Rejection of scheme of arrangement - It is the forceful submission of the Appellants that, just because, there is an allegation of commission of an offence, against the provisions of the Companies Act, 2013, the Scheme of Arrangement, is not to be rejected - It is the version of the Respondent that the Companies are retaining the amount collected already from the Shareholders, before the Companies Act, 2013. HELD THAT:- Section 2 (31) of the Companies Act, 2013, defines deposit including any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India - As a matter of fact, only those deposits, loans or money receipts, which are repayable, and which are not in the category of exempted Deposits, will be treate....... + More

Suit for specific performance of a contract - Seeking to transfer and register the land in the name of the Applicant Firm as it has duly purchased and paid total sale consideration - HELD THAT:- It is apparent that no suit or legal proceedings shall be commenced or proceeded with, except by leave of the court and subject to such terms as the court may impose. This court is of the considered opinion that the contents of IA No.2785/2017 partake of the nature of civil suit for specific performance of a contract. A detailed reply and two additional replies have also been filed by the Official Liquidator as also the rejoinder and photocopies of many documents have also been relied upon by the both the parties, whose veracity cannot be checked only on affidavits and arguments. In such circumstances, when various disputed questions of facts and ....... + More

Vicarious liability of Directors who resigned - Non-submission of annual return and holding of annual general meeting in the relevant year - non-submission of financial statement within the stipulated time with Registrar of Companies - not having registered office capable of receiving and acknowledging the communication - AGM has not been held proceedings has not been forwarded to Registrar - HELD THAT:- This is a case where admittedly petitioner worked as Director of the Company between the period 30th September, 1992 till 13th March, 1995 and then resigned. In 2011, under the mistaken belief, complaint was filed against present petitioner also for alleged non-compliance of Section 220 of Act, 1956 for which penalty is provided under Section 162 of the Act, 1956 - Admittedly, alleged non-compliance is for the period 2008-2009 and year 20....... + More

Striking off Company’s name from the Register of Companies - defaults in statutory compliances, namely, failure to file financial statements and annual returns - Section 248 (5) of the Companies Act, 2013 - HELD THAT:- The Company being in the Real Estate Development and Construction and having regard to the fact that the Company in this Appeal has come out with the plea that in the event of revival of the Company and the restoration of name of the Company in the Register maintained by the ROC, it shall file all outstanding statutory documents namely, the financial statements for the financial years and also the annual returns along with the file fees and the additional fees as applicable on the date of the actual filing, on a careful consideration of the contentions advanced by both sides, this Tribunal by exercising of sound discr....... + More

Seeking restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) - it is alleged that the Appellant company has not filed its return of income since inception, thereby violating the mandatory provisions under Section 139 of the Income Tax, 1961 - HELD THAT:- There is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order and also there is no cogent reason to interfere. Therefore, we do not need to interfere in the impugned order. The impugned order passed by the National Company Law Tribunal (Court-V, New Delhi) is hereby affirmed. There is no merit in the Appeal. The Appeal is hereby dismissed.

Jurisdiction of NCLT over violation of SEBI law - Scope of the rectificatory jurisdiction of the National Company Law Tribunal under Section 59 of the Companies Act, 2013 - determination of appropriate forum for adjudication and determination of violations of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) Regulations, 1997 - HELD THAT:- The scope and ambit of Section 155 of the Companies Act, 1956, as it then existed, fell for consideration in a decision of this Court in Ammonia Supplies [1998 (9) TMI 427 - SUPREME COURT]. The application for rectification in Ammonia’s case was filed under Section 155, and it was submitted that the scope for rectification under Section 155 is enlarged in comparison with the position as it were under Section 38 of the 1913 Act. Rejecting the argument, this....... + More

Anti-Competitive Acts - whether the warranty policy has (i) potentially resulted in denial of market access to parallel importers & resellers of Boxed Micro-Processors for Desktop and Laptop PCs & (ii) the risk of higher pricing for the said articles in India? - powers under Section 26(1) of the Competition Act, 2002 - HELD THAT:- The argument of learned Senior Advocate Dr. A.M.Singhvi that the investigation now ordered under section 26(1) of the 2002 Act may have a ‘detrimental effect’ on the business reputation of the petitioners, may be arguably true, to some extent. He also contended that the investigation to be undertaken by the Director General in terms of order under section 26(1) of the 2002 Act, (which he termed ‘draconian law’) involves an intrusive and free ranging inquiry into every aspect of hi....... + More

Vicarious liability of Additional Director - Non-executive Independent Directors or not - Officer in default - non repayment of deposits by the Company to the depositors - alleged violation of section 74 of Companies Act - HELD THAT:- This is a case where raison d' etre of petitioner's submissions is his status in the Company as Non-executive Independent Director. According to the petitioner, he was appointed as Non-executive Independent Director in the Company since 29/11/2006 and worked till 31/3/2015 in same capacity, therefore, submission advanced on behalf of petitioner was that the petitioner was neither Key Managerial Personnel as per Section 2 (51) nor he was Officer in Default as per Section 2 (60) of the Companies Act, 2013. The petitioner was Director in the Company and even if any doubt exists in respect of his status ....... + More

Non-compliance of Section 220 of the Act, 1956 for period in year 2008-2009 and 2009-2010 - non-submission of balance sheet and profit and loss account - case of petitioner is that he retired form post of Director prior to the alleged period and no liability can be fastened on him - HELD THAT:- This is a case where admittedly petitioner worked as Director of the Company between the period 30th September, 1992 till 13th March, 1995 and then resigned. In 2011, under the mistaken belief, complaint was filed against present petitioner also for alleged non-compliance of Section 220 of Act, 1956 for which penalty is provided under Section 162 of the Act, 1956. Admittedly, alleged non-compliance is for the period 2008-2009 and year 2009-2010 where some defaults on the part of the Company are made. Admittedly, petitioner resigned w.e.f. 13th Marc....... + More

Anti-competitive acts - bid rigging - use of dominion position - it is alleged that the impugned order of CCI does not comply with the requirements of Section 26(1) of the Competition Act, 2002 and the same is arbitrary, perverse and illegal - formal agreement exists between the parties or not - HELD THAT:- On plain reading of Section 2(b), it clearly reveals that an agreement includes any arrangement or understanding or action in concert, whether it is formal or in writing or whether it is intended to be enforceable by legal proceedings. Thus, for an agreement, under this Act , need not be in writing. On the facts and circumstances of each case, the conduct of the parties to agreement can be inferred. At the same time, under Section 2(c) Cartel would include association of producers, sellers, distributors, traders or service providers, w....... + More

Jurisdiction of civil court - Rejection of plaint of appellant under Order VII Rule 11(d) of Code of Civil Procedure, 1908 - rejection on the ground that the civil suit was barred by virtue of Section 430 of the Companies Act, 2013 as the appropriate forum for the adjudication of the disputes involved is the National Company Law Tribunal - applicability of Companies Act, 1956 or the Companies Act, 2013? - reliability on decisions of on Jai Mahal Hotels Pvt. Ltd. [2015 (10) TMI 265 - SUPREME COURT] and Standard Chartered Bank [2006 (5) TMI 185 - SUPREME COURT] - bar on the jurisdiction of civil courts - applicability of bar under Section 430 - liquidation of TCL have an impact on the outcome of the instant appeal? Whether the instant suit is governed by the Companies Act, 1956 or the Companies Act, 2013? - Can the Appellants in the facts a....... + More

Maintainability of suit - exclusive jurisdiction of the National Company Law Tribunal - fraudulent transactions - seeking declaration that the recordings of the names of the defendant as holders of shares of and in the defendant no. 4 respectively in the books and the register of the defendant no. 4 are illegal - decree for delivery up and cancellation of the share certificates issued in favour of the defendant - perpetual injunction restraining the defendant and each one of them by themselves or through their respective servants, agents or assigns from exercising any ownership right in respect of the said shares - perpetual injunction restraining the defendant and each one of them either by themselves or through their respective servants, agents or assigns from exercising any voting right in respect of the said shares. HELD THAT:- The pl....... + More

Seeking dissolution of the company - Section 481 of the Companies Act, 1956 - HELD THAT:- The Official Liquidator, relying upon the auditor's certificate dated 22.02.2022 submitted that no balance is available in the Bank Account of the Company. Moreover, no assets of the Company in liquidation are available. It was submitted that the report may be accepted and appropriate order of dissolution of the Company in liquidation may be passed as prayed for. Considering the ratio laid down by the Apex Court in the case of Meghal Homes Pvt. Ltd. [2007 (8) TMI 447 - SUPREME COURT], the report deserves to be accepted. The Company, named, M/s. Arya Silk Mills Pvt. Ltd. (In Liquidation) is hereby dissolved under Section 481 of the Act and the Official Liquidator attached to this Court stands discharged and is relieved as liquidator of M/s. M/s. A....... + More

Misuse of own personal purpose and benefit funds of the company and became liable and accountable for money or property of the Company - guilty of misfeasance - breach of the trust - breach of duties - gross negligence - contribution to the assets of the company in liquidation by way of compensation - contribution to the assets of the company in liquidation and to pay official liquidator of the company in liquidation - section 478 read with section 543 of the Companies Act, 1956 - HELD THAT:- Considering the progress of the matter since 2007 till date, it appears that the Official Liquidator is not keen to proceed with the matter and the matter is being adjourned from time to time on one pretext or another. The Income Tax department has already instituted the prosecution which is pending as stated in the aforesaid affidavit filed on 28.11....... + More

Application for amendment in the plaint by deleting the name of the defendant no. 1 by substituting the name of the Liquidator of the defendant no. 1 in the cause title as well as in the plaint - overriding provisions of IBC over other laws - Section 238 of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- In the instant case, one of the financial creditors of the defendant had initiated proceeding under Section 7 of the Insolvency and Bankruptcy Code 2016 against the defendant and the Tribunal had admitted the application and appointed Liquidator. The Liquidator had made Public announcement calling upon all the stakeholders of the defendant company for submission of their respective claim, if any, and the plaintiff has lodged its claim before the Liquidator but the same was rejected on the ground of limitation but in appeal the Learn....... + More

Recall of order - power to review - CIRP initiated - Corporate Debtor failed to make repayment of its dues - Operational Creditors - HELD THAT:- It is clear that the Corporate Debtor had appeared on both the dates and that the copy of the Petition and the supporting documents were served on them on 02.11.2022, hence the Adjudicating Authority had closed the opportunity to file the Counter; the matter was posted For Hearing on 05.12.2022 and thereafter on 05.01.2023, the CIRP was initiated. When the matter came up For Hearing on 05.12.2022, the Corporate Debtor could have been present and submitted his arguments. Though, his right to file the Counter was closed, he was not set Ex Parte as on the date 21.11.2022 and therefore he could have appeared on 05.12.2022 when the matter was posted For Final Hearing and having been present as on 11.1....... + More

Seeking directions against the Respondents 2 & 3 for malicious and frivolous initiation of CIRP - HELD THAT:- Having regard to the fact that the CIRP Process is over, the Liquidation Process is almost complete as on the date of Impugned Order i.e., 12.03.2021 and the Assets were sold at a good price and sale proceeds were distributed amongst the Shareholders, we do not see any ground to set the clock back or to interfere with the Orders of the Adjudicating Authority dated 27.02.2020 and 12.03.2021 respectively. Furthermore, a perusal of the material on record shows that the Appellant and Respondents 2 & 3 entered into a Memorandum of Settlement on 15.03.2016 and the Petition was disposed of vide Order dated 17.03.2016 - It is seen from the aforenoted Order that the remedy available for the Appellants was to file appropriate Procee....... + More

Liquidation of Corporate Debtor - mode of sale - public auction - Section 33 of IBC - HELD THAT:- In the present case, Respondent No.2 who was the Applicant making an offer to acquire the assets of the Corporate Debtor was at best an offeror whose offer was required to be tested with any other willing interested person and the Adjudicating Authority ought to have asked the liquidator to conduct the private sale and give opportunity to others to compete since the maximisation of the assets of the Corporate Debtor is the object of the IBC. Merely on the basis of one application and other by an intervenor, the Adjudicating Authority could not have concluded the sale in favour of the Respondent No.2. The liquidator has earlier rejected the offer given by the Respondent No.2 which clearly meant that the liquidator was not satisfied with the of....... + More

Maintainability of application - Prohibitory period under Section 10A of the I&B Code - principal submission pressed by the Appellant is that as per Annexure 3 to the Debenture Subscription Agreement, clause 6, the date of default for repayment occurs on 31.08.2020, which was during the prohibitory period under Section 10A of the I&B Code - HELD THAT:- The submission of the learned counsel for the Appellant that as per Annexure-3 clause 6, the date of repayment of instalment is 31.08.2020 only is not acceptable. There being clear admission on behalf of the Appellant in default in payment of interest for the quarters ending September 2019 and December 2019, Appellant cannot be permitted to contend that default was committed only on 31.08.2020. Insofar as application being barred by 10A, benefit under Section 10A can be claimed by t....... + More

Validity, Viability and Feasibility of Resolution Plan - Liquidation Value - Section 30 (6) (c) and 31 of the I & B Code, 2016 - main grievance of the Appellant is that, the mere glance of the Resolution Plan, makes it clear that the Resolution Applicant, had hijacked the Substantial Assets of the Corporate Debtor, at a Price, substantially below the Liquidated Value of the Corporate Debtor, as defined in Regulation 2 (k) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016. HELD THAT:- In the present case, it is quite evident that the 2nd Respondent through a Resolution Plan, had offered Rs.50.70 Crores as Full and Final Settlement of all the Liabilities of the 1st Respondent / Corporate Debtor, which was duly approved with requisite majority of the Committee of Credit....... + More

Recovery of premises being used as Registered Office of the corporate debtor, by the landlord JOML during the subsistence of moratorium after the initiation of CIRP - monthly rent was agreed upon and is payable to the landlord JOML by the corporate debtor, before or during the imposition of moratorium. Whether said premises owned by JOML, situated at Village Tilmapur, Gazipur Road, Ashapur, Varanasi were being used by the corporate debtor prior to the initiation of CIRP of JVL Agro? - HELD THAT:- The said premises were definitely in possession of JVL Agro from 14.2.2018, if not earlier, and was definitely in the possession of the corporate debtor on 25.7.2018 when the CIRP of the corporate debtor was initiated. Whether the insertion of padlocks on the gates of the said premises was permitted in view of moratorium which was in force? - HEL....... + More

Seeking sanction of resolution plan, approved in the meeting of Committee of Creditors - Section 31 of the Insolvency and Bankruptcy Code, 2016 - failure to appreciate the mandatory provision of Section 29-A, Section 24(3)(c) & Section 30(2) of the Code - considering ineligible party as Successful Resolution Applicant - HELD THAT:- It is noted that the Adjudicating Authority gave this order on 27.02.2020 and no appeal was preferred against this order, therefore, the order of Adjudicating Authority in CA No. 314 of 2019 has achieved finality and moreover, it is also noted that under Section 24(3)(c) the participation of a representative of the operational creditors does not confer any voting right on the representative of the operational creditors and therefore, nonparticipation of a representative cannot have bearing either in conduct....... + More

Fraudulent/wrongful trading - Constitutional Validity of Section 66(1) of the Insolvency and Bankruptcy Code, 2016 - defrauding the gullible creditors to siphon off public money - Jurisdiction in course of winding up of company against the persons responsible for fraudulent conduct of the business of the company - HELD THAT:- As evident from the precedence Section 339 or Companies Act, 2013 and pari material, the provisions of section 542 of Companies Act, 1956 was aimed at conferring jurisdiction in the course of winding up of company to proceed against the persons responsible for fraudulent conduct of the business of the company. Both these provisions were aimed at making such persons personally liable for such fraudulent trading to recouping losses incurred thereby and to relief the company of the liabilities incurred by fraudulent tra....... + More

Delay in filing of appeal - Time Limitation - Avoidance of transactions - extension of prescribed period in certain cases in respect of delay caused in filing of the appeal or application within the prescribed period - Section 5 of the Limitation Act, 1963 - HELD THAT:- In normal circumstances, as per the provision of Article 120 of the Limitation Act, 1963, after the death of Respondent No. 1 on 26.04.2021 the application for impleadment for LRs could have been filed up to 26.07.2021 but in the present case the death of Respondent was not within the knowledge of the Appellant (Liquidator) and it cannot also be presumed that he knew about his death until and unless some cogent evidence is produced rather the factum of the death was brought before the Tribunal as well to the notice of the Applicant for the first time on 12.07.2021 without ....... + More

Scope of Liquidation Estate - auction - immovable property’ being AC 44.65 Cents of Industrial Land at Nidadavole Village and Mandal, West Godavari District, Andhra Pradesh being unrelinquished, as communicated to the Liquidator - principles of Balance of Convenience - HELD THAT:- It transpires that the Liquidator through an E-mail on 06.09.2021 had claimed possession of the property to be handed over to him and that the Applicant / Appellant had failed to sell over the possession of the properties to and in favour of the Liquidator and hence, the Applicant / Appellant was perforced to prefer IA(IBC)/857(CHE)/2021 in CP/1053/IB/2018 before the Adjudicating Authority, (National Company Law Tribunal, Division Bench - I, Chennai) seeking extension of Three Months period. This Tribunal on going through the impugned order passed in IA(IB....... + More

Maintainability of second application on the same cause of action - exactly similar application had earlier been filed as I.A. No. 3431-3433 of 2022 which was argued for sometime and withdrawn with liberty to avail any other remedy but for the remedy before this Tribunal - Prayer for revival and relisting of CA (AT) (Ins) No. 627 of 2019 and to adjudicate the same upon the questions of facts and law as raised therein, except upon the question of limitation - seeking to direct Respondent No. 2 not to proceed with the CIRP till disposal of present application - how a second application on the same cause of action is maintainable? HELD THAT:- Such a procedure cannot be followed as it is against the judicial propriety and public policy in as much as it will breed an unending litigation before the Courts of Law. Even otherwise, liberty was not....... + More

Withholding of professional fees of petitioner - whether the Fee for Professional Services, constituted as an Operational Debt? - reimbursement of Travelling Expenses, would not an amount of payment to Professional Fee - Invoice was not appreciated in proper Direction - HELD THAT:- Considering the fact that the Insolvency & Bankruptcy Code, 2016, is a summary proceeding and the Code is an inbuilt and self-contained one and the Proceedings are not to be decided, like that of a Suit, before a Competent Civil Court, taking note of the fact that the Respondent, at any cost, is not accepting the case of the Appellant, in regard to the Fees required by him and the plea of the Respondent is not moonshine, this Tribunal, at this juncture, simpliciter deems it fit that directing the Appellant to resort to approach the Competent Forum for redre....... + More

Service of order - listing of the application on the same day through email - before the application could have been decided, the impugned order was passed - opportunity for hearing not provided - violation of principle of audi alteram partem (principles of natural justice) - HELD THAT:- There is a total fallacy on the part of the Adjudicating Authority in passing the impugned order as it hits the salutary principle of audi alteram partem. The presence of the Appellant was shown in the order dated 01.09.2022 when the order was reserved and at the same time, the order of correction has been passed by the Adjudicating Authority when IA No. 4453 of 2022 was allowed on 22.09.2022 which means that the Appellant was not present when the matter was heard and order was reserved, therefore, there was no representation on behalf of the Appellant be....... + More

Seeking consideration of Revised Resolution Plan after receipt of Resolution Plan - whether after closure of Challenge Process on 15.07.2022 and consequent receipt of Resolution Plan by 18.07.2022, the Adjudicating Authority could have directed for consideration of the revised plan submitted by the Respondent No.2 thereafter? - HELD THAT:- Clause 7 of the Challenge Process clearly contemplates that after conclusion of the Challenge Process, the eligible Resolution Applicants shall not revise their bid/commercial offer. It is relevant to notice that Challenge Process also reserves the unconditional right of the CoC to cancel/ modify/ withdraw/ abandon/ amend the process of the Challenge Process at any stage. The approval of the plan submitted in CIRP is in the domain of the CoC. Under Regulation 39 of the CIRP Regulations, the Committee is....... + More

Maintainability of application - initiation of CIRP with a malicious intent or not - grievance of the Appellant is that, the 1st Respondent / Bank had declared the account of the 2nd Respondent / Corporate Debtor as Fraud, without any cogent proof and later, lodged a complaint with the Enforcement Agencies, which was a violation of the Corporate Debtor’s basic rights, guaranteed under the Constitution of India - case making out for insolvency or not - HELD THAT:- It cannot be forgotten that an Application for initiation of Corporate Insolvency Resolution Process, was made on 19.08.2021, by the 1st Respondent / Bank, and the Date of Default, was 31.10.2018. As such, the Application, filed under Section 7 of the Code, by the 1st Respondent / Bank, before the Adjudicating Authority, is well within time and its Ex-facie, is maintainable....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - application rejected by the Adjudicating Authority on the ground that the Corporate Debtor discharged the obligation as per the terms of the guarantee and therefore there was no debt due from the Corporate Debtor - HELD THAT:- On perusing the valuable opinions of Hon’ble Justice Bansi Lal Bhat, Member (Judicial) and Hon’ble Mr. Balvinder Singh, Member (Technical) dated 25th September, 2019, I respectfully agree with the reason given by Hon’ble Justice Bansi Lal Bhat, Member (Judicial) in his opinion. It was held that it can be safely stated that the Respondent - Corporate Guarantor, in the face of provision in the approved scheme of amalgamation and consequent merger, justifiably pleaded that there was no debt pa....... + More

Seeking to withdraw from e-auction process - refund of EMD and first installment deposited - whether even after attachment of the assets of the corporate debtor under PMLA Act on 02.12.2021, the auction purchaser was required to deposit the entire sale amount? - HELD THAT:- Before the Order of attachment was passed on 02.12.2021, no default can be said to have committed by Auction Purchaser in depositing the amount since first installment was deposited within time and the successful purchaser had 90 days time to deposit the balance amount and before expiry of 90 days the assets of the corporate debtor were attached. In view of the attachment of the assets of the corporate debtor on 02.12.2021, Liquidator can neither complete the sale, can issue sale certificate nor can hand over the assets of the corporate Debtor to the Successful Auction....... + More

Maintainability of petition - availability of appellate remedy - whether the standard applied is reasonable and proportionate in evaluation of administrative or executive action in judicial review? - HELD THAT:- A hearing is not to be an empty formality. It must be an effective hearing and must result in a reasoned order that reflects a proper application of mind. This speaks to the decision-making process, not the resultant decision itself. Where these elements are found even prima facie to be lacking, a writ Court is not denuded of its powers, nor can it be told that its extraordinary jurisdiction is completely fettered - Where the petitioner is able to prima facie dispute the existence of an effective alternate appellate remedy, that is to say, where the petitioner points out that if the alternate appellate remedy invoked by the respon....... + More

Initiation of CIRP - existence of debt and dispute or not - Operational Creditors - NCLT admitted the application - Ex-parte order - Corporate Debtor did not make any appearance before the Adjudicating Authority nor filed any submissions - HELD THAT:- It is a well settled proposition that for a pre-existing dispute to be a ground to nullify an application under Section 9, the dispute raised must be truly existing at the time of filing a reply to notice of demand as contemplated by Section 8(2) of IBC or at the time of filing the Section 9 application. The Operational Creditor neither having received any reply to the demand notice nor having received any further payments from the Corporate Debtor had proceeded to file Section 9 application and at this stage the Adjudicating Authority is only required to look into the substance of the plead....... + More

Initiation of CIRP - Operational Debt or not - amount claimed by SDMC in connection with Toll Tax and ECC Agreement - existence of pre-existing dispute between SDMC and the contractor MEP Infrastructure or not - Classification of debt that is claimed to be in default and payable to SDMC - HELD THAT:- An operational debt is a claim in respect of provisions of goods or services and the claim must bear some connection with the provision of goods or services, without specifying who is the supplier or receiver. Thus, the supplier in the present case of services is MEP Infrastructure and the receiver is SDMC, but in accordance with the clearly held position in the case of Consolidated Construction Consortium Ltd. [2022 (2) TMI 254 - SUPREME COURT], the debt owed by MEP Infrastructure to SDMC falls in the definition of operational debt under the....... + More

Provisional attachment of properties under Section 5 of the Prevention of Money Laundering Act, 2002 - no proceedings relating to the predicate offense may have been initiated by the competent agency functioning under an independent statute and in terms of which the scheduled offense stands created - whether the ED could be recognised to have the jurisdiction to enforce the measures contemplated in Section 5 of the Act solely upon it being of the opinion that the material gathered in the course of an investigation or enquiry evidences the commission of a predicate offense? HELD THAT:- The Court finds that till date the ED has failed to take any steps as are envisaged under Section 66(2) of the PMLA. As would be manifest from a reading of sub-section (2) of Section 66 if the Director or other authority on the basis of material in its posse....... + More

Money Laundering - proceeds of crime - Accumulation of disproportionate assets accumulated by the accused/ MLA/ Minister, Anos Ekka and Harinarayan Rai - criminal conspiracy - misappropriation - criminal breach of trust - cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount - acquiring assets disproportionate to his known lawful source of income and also to have acquired lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka - scheduled offence/predicate offence. HELD THAT:- The three ingredients of the offence under Section 3 read with Section 4 of PMLA are: I. A criminal activity which is a scheduled offence, should have been committed. II. Some money should have been generated by the criminal activity; III. The money so generated (proceed of the crime) shou....... + More

Money Laundering - generation of proceeds of crime or not - alleging perpetration of criminal activities in the sanction and disbursement of credit facility to the company - role of petitioner in the commission of offence - HELD THAT:- The requirement of projecting the proceedings of crime as untainted property may be one of the modes by which the offence is committed and is no longer a sine qua non for constituting the offence of money-laundering under Section 3 of the PML Act. The predicate offence against the petitioner is that he fraudulently sanctioned and disbursed the loan. The loan is, therefore, the proceeds of crime. It is necessary to notice that the scope of Section 3 is wide enough to cover all persons who “directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in....... + More

Provisional attachment order - case of petitioner is that Madura Chemicals Pvt. Ltd. was acquired by the petitioner in the year 2015 and that the petitioner was never put on notice either after the provisional attachment order was passed or when the confirmation order was passed by the Adjudicating Authority - HELD THAT:- Madura Chemicals Pvt. Ltd. has been specifically added as a party before the Adjudicating Authority and it is represented by the above said Mathesh. We are dealing with a legal persona in the present case and it is enough if notice is issued to the company. The grievance of the petitioner that he did not personally know about this case is a matter to be resolved with Mathesh, who had received money from the petitioner enabling the petitioner to acquire the company. Hence, we are not satisfied with the contention raised b....... + More

Money Laundering - schedule offence - proceeds of crime - non-existent or non-functional or fake functional MSMEs - offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 besides Sections 420, 468, 471 and 120-B IPC - HELD THAT:- The PMLA is a law linked with the scheduled offence. The same is evident from a sincere reading of Sections 5 and 8 of PMLA as it stood prior to 2009 and 2013 Amendments. In Section 5 of the PMLA (as it was originally enacted), a condition prerequisite for an order of provisional attachment of property was that the accused has been charged of having committed a scheduled offence. The said requirement was diluted to the effect that notwithstanding the above, provisional attachment could be ensured under Section 5 of PMLA when the concerned officer expressed his view in wr....... + More

Money Laundering - proceeds of crime - when a juristic person has been arrayed as an accused in a prosecution, who should have to represent such a legal persona? - HELD THAT:- A12 has volunteered to represent the juristic person A13. In view of the same, the juristic entity has nominated a person to represent it in the prosecution and as a result, the petitioner can be discharged from the complaint. This Criminal Revision Case stands allowed.

Seeking grant of bail - Money Laundering - proceeds of crime - collection of funds under false promises of exorbitant high rate of interest on the deposits - HELD THAT:- Primarily delay in trial is attributable to the accused. Though the complaint was filed in the year 2018. The trial court could deliver the copies under Section 207 of the Cr.P.C only on 22nd March, 2022 to the accused. Prosecution cannot be blamed for causing delay in conducting ML Case No.2 of 2018. It is also not out of place to mention that the petitioner is involved in money laundering of huge sum of money amounting to Rs.1750 crores (approximately). He has already siphoned out a sum of Rs.6666 crores which are proceeds of crime. The Enforcement Directorate has also produced reports and documents as to how the petitioner tried to coerce the present director of M/s Ch....... + More

Money Laundering - provisional attachment order - scheduled/ predicate offence - proceeds of crime - Petitioners have been discharged in the scheduled/ predicate offence - It is submitted by petitioner that a closure report filed by the CBI has been accepted by the Trial Court in respect of the predicate offence and no criminal charges are now pending against the Petitioners - HELD THAT:- A perusal of the orders passed in Parvathi Kollur [2022 (8) TMI 1256 - SC ORDER] leaves no matter of doubt in the mind of the Court that if there is an acquittal/ discharge or a closure report has been filed in the predicate offence, the ECIR would not stand and the same would be liable to be quashed. For example, in ADJUDICATING AUTHORITY (PMLA) AND ORS. VERSUS SHRI AJAY KUMAR GUPTA & ORS. [2023 (1) TMI 681 - SC ORDER], there was acquittal in the pr....... + More

Validity of attachment order - acquittal in respect of predicate offence - HELD THAT:- The appeals filed by the Adjudicating Authority (PMLA) do not survive and are accordingly disposed of.

Validity of attachment order - acquittal in respect of predicate offence - HELD THAT:- The appeals filed by the Adjudicating Authority (PMLA) do not survive and are accordingly disposed of.

Search and seizure conducted on 17.10.2022 and consequential panchanamas contrary to the Section 17 of the Prevention of Money Laundering Act - Challenge on the ground that the reasons are to be recorded in writing before issuing search warrant and the reasons are to be communicated immediately after the search and seizure - reasons to believe - HELD THAT:- This Court is of considered view that the Additional Director of the Enforcement Directorate without recording the 'reasons to believe' issued search warrant/authorisation to his subordinates and the Deputy Director of the Enforcement recorded the reasons to believe without any date and time, which clearly shows that without following the requirements under Section 17 (1) of PML Act conducted search and seizure and seized jewellery, cash and other articles belonging to the peti....... + More

Money Laundering - Seeking grant of Regular Bail - objection taken in the affidavit is that prior to the arrest, two times non-bailable warrants were issued to which the petitioner did not respond and during the custody period, he has not cooperated with the investigation - apprehension that if the petitioner is enlarged on bail, he may misuse the concession of bail or evade the process of law or may not face the trial - twin conditions under Section 45 of the PMLA Act not fulfilled - HELD THAT:- It is not disputed that the petitioner when released on interim bail has undergone about 06 months of custody. Since the petitioner is seeking parity with the co-accused, who has already been granted the concession of regular bail vide order dated 01.07.2022 wherein it was observed that the co-accused qualifies the triple test under Section 45 of....... + More

Money Laundering - provisional attachment order - Seeking permission to cross-examine the three person - As per the Petitioner, an order passed in an application seeking cross-examination is merely a procedural order, and not one under either of the provisions specified in Section 26 - HELD THAT:- The powers of the Adjudicating Authority, under Section 8 of PMLA, are quite vast. The said provision stipulates the various steps to be taken, prior to the passing of the final order by the Adjudicating Authority. The Adjudicating Authority has to consider the show cause notice, the reply of the notice/s, hear the aggrieved person, as also, the Director or any officer authorised on his behalf, take into account all relevant materials placed before it, and thereafter, by an order record a finding whether any or all of the property is involved in....... + More

Seeking grant of Regular Bail - Money laundering - settlement of the commission and the betting amount was done mainly through hawala operators in cash or through crypto currency with each individual player and the Union Head, by their respective club managers - offences under Sections 3 and 4 of Goa Gambling Act - no scheduled offences against any of the Accused including Applicant Nos. 1 and 2 - HELD THAT:- From definition of proceeds of crime, it clear that when any property, either directly or indirectly, is derived or obtained as a result of any criminal activity relatable to a scheduled offence, it would be “proceeds of crime”. Therefore, for there to be any “proceeds of crime”, the property must be derived or obtained as a result of any criminal activity relatable to a scheduled offence. If any property is o....... + More

Seeking grant of Bail - existence of offence of Money Laundering or not - scheduled offences punishable under Sections 402, 406, 465, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 - predicate offence - filing of C-Summary report - whether filing of C-Summary report and acceptance by the Magistrate take away the seriousness of the offence as independent proceedings are registered and as charge- sheet is already filed in the PMLA case? - HELD THAT:- It is pertinent to note that in the present case, the complainant at whose instance the proceedings were initiated submitted his no objection to the acceptance of the C-Summary report. The MMRDA which is alleged to have suffered losses has not filed any complaint of breach of contract or that they are defrauded. Of course, these are matters to be taken into consideration by the Special ....... + More

Provisional attachment order - seeking eviction of the present owner - the case is that since the Petitioner is 50% owner of all these properties, the occupants cannot be evicted in this manner - HELD THAT:- Admittedly, Sh. Pankaj Jain and Sh. Sanjay Jain are brothers. They own equal shares in the properties listed above. The ED is seeking eviction of the occupants from the properties, qua the share of Sh. Pankaj Jain, but the same are under occupation of the family of Sh. Sanjay Jain or tenants. The appeal filed by Sh. Pankaj Jain against whom the attachment order has been finally confirmed, is presently pending before the Appellate Tribunal constituted under Section 25 of PMLA. A perusal of Section 26 of the Prevention of Money Laundering Act, 2002 shows that orders of attachment passed by the Adjudicating Authority are appealable to th....... + More

Criminal conspiracy - scheduled offences - predicate offences - Large scale bungling - misappropriation and cheating of public funds, while implementing the NRHM by the government officials, in active connivance and conspiracy with private persons - HELD THAT:- Offence of money laundering is clearly a distinct and distinguishable from predicate offence. The FIR could be triggering point for initiation of proceedings under the PMLA. If it is found that the accused have also committed an offence which is punishable under the PMLA, the prosecution under the PMLA will be initiated by filing complaint under Section 45 of the PMLA. The scheduled offence and offence of money laundering are mutually exclusive and independent of each other. The offence under Section 3 of the PMLA does not prescribe any limit of proceeds of crime for initiating the....... + More

Money laundering - misappropriated the loan amount - company has misappropriated the money lent by the bank and there was clear cut diversion of funds by the company - HELD THAT:- Money laundering often involves a complex series of transactions and it generally includes placement i.e. introduction of the proceeds of crime into the financial system. The proceeds of crime is layered in several financial transactions to distance the illicit proceeds from their source and to disguise the audit trail. In this process, a series of conversions or transactions are involved for moving the funds and places such as offshore financial centers operating in a liberal regulatory regime. The proceeds of crime is invested in the legitimate economy, so that the money may get the colour of legitimacy and this is achieved by techniques such as lending the mo....... + More

Money laundering - loans were fraudulently obtained by KSBL from banks/Financial Institutions by declaring clients’ shares as its own shares - Direction to grant extension of time to the petitioners to prepare a reply to the show cause notice, for a further period of two months and consequently exclude two month period from the computation of 180 days under Section 5(3) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- No doubt that the adjudicating process as envisaged under Section 8 of the Act is time-bound process. Timelines are mentioned therein. Therefore, in view of the said discussion, according to this Court, the petitioners are entitled to grant of extension of some reasonable time to submit reply to the show cause notice, dated 19.09.2022. According to this Court, two months time from today is reasonable. Acco....... + More

Seeking grant of anticipatory bail - money laundering - scheduled offences - ponzi companies - petitioner is alleged to be instrumental in facilitating co-accused Pranjil Batra for purchasing/acquiring 10 dummy/paper/fictitious companies in cash consideration to the tune of Rs.42 crores through 'accommodation' entries - HELD THAT:- The role of the petitioner when examined make it clearly apparent that he has indulged into money laundering by way of facilitating co-accused in execution of the fraud through dubious modus-operandi. Money laundering criminals use shell companies because shell companies are commercial companies that appear legitimate but are actually controlled by criminals. These shell companies mix illegal funds with legitimate funds to hide unfair income. Front companies are not only aiming to make a profit but also....... + More

SEBI settlement Scheme, 2022 - penalty imposed as petitioner alleging that he carried out non-genuine trades i.e. in liquid stock options at the Bombay Stock Exchange, whereby, he violated Regulations 3(a)(b)(c)(d), 4(1) and 4(2)(a) of SEBI (prohibition of Fraudulent and Unfair Trading Practices related to Securities Markets), Regulations 2003 - advantage of the scheme while accepting online payment - petition seeks for issuance of directions in the nature of mandamus directing the respondents to open/enable the link for payment of penalty in terms of the Scheme and accept the payment on behalf of the Petitioner on or before the closure of the Settlement Scheme of 2022 either physically or online - HELD THAT:- SEBI settlement Scheme, 2022 with an object to settle enforcement proceedings approved/initiated and pending in respect of Illiqui....... + More

Notification notifying the Securities and Exchange Board of India (Research Analyst) Regulations, 2014 - Mandation to petitioner to take Licence/Registration from the respondents just to speak or write regarding listed stocks, and for sharing stock related recommendations with others and on social media - petitioner’s grievance is that on account of these Regulations, he has been deprived of his fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, the right to practice profession/business of his choice guaranteed under Article 19(1)(g) and 19(6) of the Constitution of India, and also right to liberty guaranteed under Article 21 of the Constitution of India due to the alleged unreasonable restrictions imposed by the said Regulations on the petitioner. HELD THAT:- It is ....... + More

Inquiring into complaints by SEBI - Power conferred on the investigating authority - reasonable ground to believed that transactions in securities - purpose of empowering the SEBI to investigate - investigative process undertaken by respondent No.3 - investigations conducted prior to ordering investigation u/s 11C - HELD THAT:- In the instant case respondent No.3 was designated as an investigating authority in order to enable the Board to investigate into the dealings in the scrip of Omaxe Ltd. on the basis that there was a reasonable ground to believed that transactions in securities were dealt with in a manner detrimental to the investors or securities market. It is in exercise of this inquisitorial power conferred under Sec.11C that respondent No.3 issued summons to the petitioners to investigate as to whether the petitioners had anyth....... + More

Public Interest Litigation - Regulations seeked to Time Share Companies as Collective Investment Scheme (CIS) under SEBI Act and the Collective Investment Schemes Regulations, 1999 (“CIS Regulations”) - scheme or arrangement to be qualified as a CIS as defined under the SEBI Act - substantial public interest for entertaining this petition - this petition has been instituted is that the rights of several million residents of India are adversely affected due to malfunctioning, fraud, misrepresentation and other wrongful and/or illegal activities of various Time Share Companies - as submitted since Time Share Companies were not included in the exempted categories and considering their mention in the interim report, they would be covered under the definition of CIS as a scheme or arrangement in section 11AA(1) of the SEBI Act HELD....... + More

Power of SEBI to initiate action against the company or its directors who have defaulted in payment of dividend - non payment of dividends - Whether the complaint filed by the respondent is barred by limitation as specified under Section 468(2) of Cr.P.C.? - HELD THAT:- A reading of the unamended Section specifies that the company and its directors are said to have committed an offence if the dividends are not paid within 42 days from the date of declaration. There is no provision that the company or its directors shall also be liable to pay a fine of Rs.1000 everyday during which such default continues. Hence, the offence committed under the unamended section was not a continuing offence. The decisions relied upon by the learned counsel for petitioners were rendered with reference to unamendend section and the same are not applicable to ....... + More

Registration of stock brokers, sub-brokers, share transfer agents with SEBI - Single registration with SEBI as sufficient even if the stock broker has various memberships and functions from several stock exchanges - Whether under the Act 1992, a stock broker has to obtain a certificate of registration from SEBI for each of the stock exchanges where he operates or whether a single certificate of registration from SEBI is sufficient and the same would enable him to trade in all other stock exchanges? - Whether the ad valorem fee to be paid for an initial period of five years will recur with every such registration? HELD THAT:- High Court, in our view, appears to be influenced by the expression ‘a certificate of registration’ referred to under Section 12(1) of the Act, 1992 but has failed to notice that the expression ‘a ce....... + More

Offence under SEBI ACT - Insider trading - violation of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - HELD THAT:- The contention of the appellant that SEBI took note of the situation in which the respondent was placed and the dire need that he had to sell the shares and that therefore SEBI confined the final order only to disgorgement, is neither here nor there. This argument is actually an argument of convenience. It so happened in this case that according to SEBI the closing price of the stock on 03.09.2013 showed favourable position for the respondent and SEBI was able to calculate as though the respondent made a profit. But if a company is likely to gain strength by making a significant change in its policy, the price of its securities is likely to shoot up. Despite such ....... + More

Offence under SEBI - Unusual price movement in the shares - penalty imposed under Section 15A(a) of the 1992 Act - non-compliance of summons - Non-cooperative attitude of the appellants during the course of the investigation - monetary penalty of rupees one crore on each appellant under Section 15A(a) for failing to comply with the summons issued to the appellants for the production of documents and furnishing of information during the course of certain investigations being carried out by SEBI during the period of 2000-2007 in relation to suspicious purchase and sale of scrip and manipulation of share prices of STIL - HELD THAT:- By not responding to the fresh summons and by not appearing before the Investigating Authority when directed to appear, the appellants’ statements could not be recorded and this has hampered with the invest....... + More

Offence under SEBI - Petitioner seeking documents relied upon by the Respondent-SEBI - sought orders for supply of a copy of the opinion formed under Rule 3 of the SEBI Adjudication Rules 1995, for constituting an Adjudicating Authority to issue Show Cause Notice dated 17th November 2020 to the Petitioner - allegation of Denial of natural justice as relevant material were not disclosed to the noticee - importance of documents relied upon for formation of opinion under Rule 3 - Petitioner had sought inspection of the opinion under Rule 3 - as submitted Adjudicating Authority has not followed the procedure, and instead fixed the case for final hearing without forming an opinion, as required under Rule 4(3) of the SEBI Adjudication Rules 1995 - HELD THAT:- A reading of Section 4(3) makes it clear that, if after considering the cause, if any ....... + More

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

Offence under SEBI - reasonable grounds to believe - Whether the ‘grounds to believe’ which is a condition precedent of initiating an investigation under section 11C did exist in the facts and circumstance of the present case? - whether the two expressions i.e. ‘has reasonable ground to believe’ as appearing in Section 11C of the SEBI Act, 1992 and ‘has reason to believe’ as appearing in Section 34 (1) (a) of the Income Tax Act, 1922 have the same meaning? - HELD THAT:- Reasonable ground is understood to mean the information that establishes sufficient articulable fact that gives a reasonable basis to believe. In other words, to be a reasonable ground, it would have to be based on certain information that establishes sufficient articulable fact to make it a basis to believe whereas existence of cause, e....... + More

Offence under the SEBI Act - Illegal fund mobilization by the accused No.1/company - accused No.1 on an aggregate had allotted Non-Convertible Debentures to at least 14256 persons, thereby making it a public issue of securities and this was done without complying with the regulatory provisions applicable to public issue - Learned Judge issued warrant of arrest against the accused persons - complaint for prosecution for violation of Fraudulent and Unfair Trade Practices relating to Securities Market HELD THAT:- The petitioner himself has filed a document uploaded in the official portal of the Ministry of Corporate Affairs wherefrom it is ascertained that the petitioner was appointed as a director of accused No.1/company on 4th November, 2013 and he remained as director till 23rd August, 2014. Thus, the petitioner was one of the directors o....... + More

SEBI Settlement Scheme, 2022 - opportunity for settlement has been provided to the entities who have executed reversal trades in the stock option segment of Bombay Stock Exchange Ltd. during the period April 1, 2014 to September 30, 2015 - HELD THAT:- We dispose of the appeal directing the appellant to file an appropriate application for settlement before the authority concerned within two weeks from today. If the same is filed, the authority will accept the settlement application in terms of proposed SEBI Settlement Scheme 2022 as an application filed in a pending proceeding and pass appropriate orders. The appeal is disposed of. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.

Chit funding schemes/scam - Investigation Done by the CBI - Petitioner challenged Investigation of the petitioners by the Central Bureau of Investigation (CBI) on the ground of lack of jurisdiction - HELD THAT:- The scale and magnitude of the scam commonly termed as the ‘Chit Fund Scam’ deserves investigation by an agency operating at a national level such as the CBI, since the tentacles of such financial scam, which has adversely affected numerous common citizens, have apparently spread over several states of India. Only the investigation and the trial of the CBI case, on its completion, shall reveal whether the source of money involved in the chit fund scam and rerouting of the huge sums involved can be traced to the petitioner no.1- Company, even if the petitioner, it is assumed is not a chit fund company in the strict sens....... + More

Procedure to be followed by debenture trustees - suit before the Bombay High Court - Evolution of the law surrounding the resolution of debts - Whether the debenture holders and other parties in the present case were required to follow the procedure under the SEBI Circular? - scope of Debenture Trust Deeds - Bombay High Court exercised jurisdiction over the subject matter of the suit - RCFL‘s case that the SEBI Circular is applicable only if the debenture holders choose to enter into an ICA under the RBI Circular - bar to the civil court’s jurisdiction - HELD THAT:- Section 15Y of the SEBI Act stipulates that no civil court shall have the jurisdiction to entertain any suit in respect of any matter which an adjudicating officer appointed under the SEBI Act is empowered to determine. Section 15-I of the SEBI Act provides that an....... + More

Offence under SEBI - Market manipulation of shares - Stay of the proceedings in criminal complaint during the pendency of the main petition - sole basis of filing of the complaint against the petitioner companies is that the accused No.17 has been shown to be one of the Directors of the petitioner companies and has been described to be the person in charge and responsible of the petitioner companies - HELD THAT:- This court directed for issuance of notice which was accepted by learned counsel appearing on behalf of the respondent and the matter was directed to be re-notified on 03.02.2020. However, in the meantime, it was directed that the trial court shall fix a date after the date is fixed in the present petition. On 29.11.2019, it was further noted that the respondent moved an application before the trial court seeking clarification of....... + More

Payment due for the services rendered to the unitholders prior to the winding up - Upfronting of trail commission - inflows through Systematic Investment Plans - Commission payable to mutual fund distributors - FIFA claims that independent financial advisors/mutual fund distributors are entitled to payment of commission agreed between them and Franklin Templeton Asset Management (India) Private Limited, which are in the nature of recurring expenses as per Regulation 52 of the Security and Exchange Board of India (Mutual Funds) Regulations, 1996 - whether asset management companies/mutual funds shall adopt a full trail model of commission in all schemes, without payment of any upfront commission or upfronting of any trail commission, directly or indirectly? - HELD THAT:- FIFA has claimed that the commission payment due to the mutual fund d....... + More

Insider trading - Freezing of bank account - bank accounts of the petitioner and her fixed deposits were freezed by the 1st respondent during the course of investigation - amounts for creation of fixed deposits and savings accounts in question with Karur Vysya Bank and HDFC Banks in the name of the petitioner were the proceeds of the crime and hence were seized during the investigation - petitioner seeking Writ of Mandamus directing the 1st respondent to defreeze the bank account and fixed deposits of the petitioner and savings bank account held in the respondent Nos. 2 to 4/Banks and for consequential directions - HELD THAT:- Admittedly, the petitioner was not shown as accused by the 1st respondent in CC registered against her sons. She was neither the promoter nor the Director of Satyam Computers Services Limited Considering the content....... + More

Offence under SEBI - Period of limitation - Whether this appeal is maintainable? - HELD THAT:- Any limitation prescribed under Section 468 of CrPC can be overlooked if sufficient cause is made out in the facts and circumstances of the individual case in the interest of justice. The said provision, while trying to balance public interest in initiating criminal prosecutions, has been restricted to peculiarities of individual case while clothing the Court with discretionary power. Such a discretion vested in the Court ought to be a principled exercise, wherein the facts and circumstances portrayed justify such an exercise. The intention of the aforesaid provision is to make the inquiry a question of fact and not of untrammelled discretion as to whether in a particular case, the Court should condone the delay. The High Court is bound to consi....... + More

Foreign investment in India - certain ‘procedural’ or ‘technical’ contraventions under FEMA - Compounding of offense - Online i.e., website-based and mobile application games constitute ‘gambling’ as understood in law in this country - delays in the filings of the prescribed forms and reporting of the inward remittances and also delays in the allotment of shares - Petitioner received foreign remittances at diverse periods between 2006 and 2012 and it issued equity instruments i.e., shares, to certain non-resident investors, the Petitioner had committed certain ‘procedural’ or ‘technical’ contraventions under FEMA - whether, for the relevant period, it can be said that the business activity of the Petitioner was illicit, prohibited by law, or illegal such that it would be disentit....... + More

Levy of penalty - Petitioners having opened the FCRA account belatedly - Form FC-4 required a FCRA account as on 31st March of the end of financial year - scope of Foreign Contribution Regulation (Amendment) Act, 2020 - HELD THAT:- A perusal of the said form at serial no.7 requires FCRA account says that receipt of foreign contribution “as on 31st March of the year ending” has to be provided and the bank account has to be in the SBI, Sansad Marg branch. Since the Petitioner No.1 opened its account in August, 2021 and in any case, as on 31st March, 2020, the Foreign Contribution Regulation (Amendment) Act, 2020, had not come into effect, there appears to be some justification in the Petitioners’ case. Petitioner No.1 having opened its FCRA account in August, 2021 is, accordingly, permitted to fill up the said details of i....... + More

Maintainability of writ petition before the Chennai High Court - Availability of alternative remedy - Validity of adjudication order passed by the Special Director of Enforcement in proceeding imposing penalty for the contravention of Section 64(2) of the Foreign Exchange Regulation Act - HELD THAT:- In the instant case, on going through the materials placed before us and after carefully considering the order passed by the Special Director of Enforcement, we find that we have to necessarily deal with a lot of documents and get into disputed questions of fact. To avoid such a scenario, the enactment itself provides for further remedies under Section 19 of FEMA before the Appellate Tribunal and thereafter, under Section 35 of the Act, by way of filing a further Appeal before the High Court against the order passed by the Appellate Tribunal........ + More

Prohibition to accept foreign contribution - misuse of the Foreign Contribution (Regulation) Act [FCRA ] by the political party - Association for Democratic Reforms seeking directions to constitute an independent tribunal or committee to oversee the enforcement of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA Act’) - Petitioners have stated that that there have been several instances of political parties and legislators accepting contributions and hospitality from foreign sources which is, prima facie, in violation of the FCRA - HELD THAT:- The Petitioner has failed to place on record any data indicating the number of political parties which have availed of foreign contribution, and have failed to be penalised under the FCRA. The apprehension of the Petitioner that the FCRA may be misused for oblique motives is a bald....... + More

Offence under FERA - sentence on economic offence - petitioner was found involved in huge transaction of foreign exchange and was dealing in prohibited items i.e. gold biscuits of foreign origin - judgment of enhancement of sentence - order of sentence holding petitioner guilty of offence u/s 8(1) & 8(2) of FERA and sentencing him to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo R.I. for a period of three months - appeal filed by the complainant for enhancement of the sentence was allowed and the petitioner was directed to undergo R.I. for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo R.I. for a period of two months under Section 56 of FERA. HELD THAT:- Present revision petition is partly a....... + More

This Court jurisdiction to entertain the execution petition of a foreign decree - Summary judgement - execution proceeding emanates from the letter which respondent/DH demanded repayment from the appellant/JD the amount paid to the lender - bank as Guarantor of the loan obtained by the appellant/JD; which was refuted by the appellant/JD - HELD THAT:- Upon going through decision in Renusagar Power Co. Ltd. Vs. General Electric Co [1993 (10) TMI 232 - SUPREME COURT] and applying it to the facts of the present case, we find that no doubt in view of said decision ex post facto permission can be obtained from the RBI to remit the funds, however, when the decree itself is found to be vitiated, being against the prescribed procedure of law recognized in India, the occasion for obtaining ex post facto permission from RBI by the decree holder in r....... + More

Person aggrieved’ in section 17 of FEMA - deemed complainant - Whether appellant is not an aggrieved person? - Whether writ petitioner is not entitled for copy of the adjudication order as he was only an informer and he cannot be treated as complainant? - HELD THAT:- Perusal of the rules stated makes it clear that a complaint can be made only by a person authorised by a general or special order of the Central Government. Lis is between the the complainant and the person against whom allegations were made and ultimately adjudicated. As per the statutory provisions, by no stretch of imagination, appellant/petitioner can be termed as a complainant and consequentially entitled to a copy of the adjudicatory order. Though Mr. S. Shyam, learned counsel for the appellant further submitted that he is personally aggrieved over the decision ta....... + More

Offence under FEMA - vicarious liability of the persons responsible - Responsibility of Directors - accused person following alleged contravention by him of the provisions of the said Act, being the ‘Director’ of the company, along with the company and other co-accused persons, for alleged commission of such contraventions/offence - HELD THAT:- During all these time petitioner was a ‘Director’ of the accused company. He remained so till 2nd August, 1996, that is a date well within the statutory period of six months time. According to the scheme of this Act, he cannot relinquish his liability as regards the alleged contravention for this period at the time of and after export of the goods, till the time he remained as company’s ‘Director’ taking part in the affairs thereof, as suggested in the comp....... + More

Maintainability of appeal before High court - hierarchy of forums provided for the parties to redress their grievances - violation of the provisions of Section 4 of FEMA - shares as well as some immovable properties of the alleged contravener were attached - petioner driven to go before the Tribunal by invoking Section 37A(5) of the FEMA Act - HELD THAT:- The parties aggrieved against the order to be passed by the Tribunal can very well invoke the further appeal provision under Section 35 of the FEMA Act to prefer an appeal to the High Court. Therefore, instead of filing a second appeal, the petitioner has taken the route of filing the appeal by way of these two writ petitions, which is not acceptable. Thus, the very remedy available to both the parties to go before the Appellate Tribunal would be unnecessarily lost, which would go agains....... + More

Offences committed under the repealed FERA - Appointment of Adjudicating Authority - Classes of officers of Enforcement - proper authorization of the ‘Adjudicating Officer’ - Scope of corresponding provisions of FEMA - Whether Mr. A.K.Bal (Respondent No.2) was specially empowered under Section 50 of FERA to be the Adjudicating Officer? - HELD THAT:- All offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Anything done or any action taken or purported to have been taken or done under repealed Act shall, in so far as it is not inconsistent with the provisions of FEMA, be deemed to have been done or taken under the corresponding provisions of FEMA. When an Adjudicating Officer had been appointed before the repeal of FERA but, as could ....... + More

Appeal before the Appellate Tribunal - Appellate Tribunal was not functional in the absence of members having been appointed - Tribunal has become functional and the Court is informed that Members as well as the Chairperson have come to be appointed - As petitioner submits that it chooses not to pursue the appeal which is pending before the Tribunal subject to rights being reserved to agitate all questions in the pending writ petition. This, in the backdrop, as Mr. Ganesh would contend, of the fact that pleadings have been duly exchanged on the instant writ petition and the Division Bench has framed directions for the disposal of the writ petition itself. In view of the aforesaid, let the petitioner, if so chosen and advised, withdraw the appeal which is pending before the Appellate Tribunal subject to rights being reserved to pursue and agitate all questions in the instant writ petition.

Offence under FEMA - Eligible charge against petitioner in SCN - no permission was given for repatriation of sale proceeds to person resident outside India and that acquisition and transfer of immovable property by her heirs residing outside India would be covered - petitioner has contravened the provisions of Section 6(3)(i) of FEMA read with Rule 8 of FEMA (Acquisition and Transfer of Immovable Property in India) Regulations 2000 (FEMA Regulations) and thereby petitioner has rendered itself liable to be proceeded against under Section 13(1) read with Section 42(1) of FEMA - HELD THAT:- Issuance of a show cause notice is not an empty formality. Its purpose is to give a reasonable opportunity to the affected persons to contend that they have not committed any breach. Proper opportunity should be given to the person likely to be affected b....... + More

Interpretation of statute - Compounding of offence for non-filing of the annual return by payment of penalty - delay in filing of the annual return - Validity of Notification bearing No.S.O. 1070(E) dated 26.04.2013 issued by the respondent u/s 41 of the Foreign Contribution (Regulation) Act, 2010 - whether impugned notification is ultra vires of the provisions of the FCR Act? - Whether the delay in filing of the returns is an offence punishable under the FCR Act? - HELD THAT:- Petitioner was required to furnish the annual returns in Form FC-6 along with its final accounts (income and expenditure statement, receipt and payment account and balance sheet) within nine months of the end of the relevant financial year. Therefore, the petitioner was required to file the annual return for the financial year ending on 31st March of any year on or....... + More

Violation of the provisions of the FERA - proceedings to be initiated within a particular period provided under the Statute - As submitted authorized dealer, before permitting the deposits of foreign currency, was required to satisfy himself that the foreign currency is deposited by the NRI Account Holder himself; that the account holder is on a temporary visit to India; and that the account holder is still normally resident abroad - whether High Court has grossly erred in holding that it was for the first time that the stipulation regarding the deposits of foreign currency by the account holder himself, was expressly provided for by Circular dated 31st July 1995 and therefore the Circular dated 31st July 1995 could not have had a retrospective operation? - HELD THAT:- We are of the view that the show causes notices issued in the year 200....... + More

Stay of recovery - whether any hearing can take place before the Tribunal qua the subject matters to be listed before the Tribunal even if these four members are appointed in the absence of the Chairman of the Tribunal. Learned ASG seeks some time to obtain instructions? - HELD THAT:- We had earlier also posed a query to learned ASG and pose it again as to why we should not pass an order directing stay of recovery proceedings in all matters before the Tribunal as the judicial remedy is before the Tribunal and if the Tribunal is not being constituted to hear the matter, which is resulting in unnecessary expenses to the litigants to approach the High Court and burden on the High Court to deal with those matters. List on 02.08.2022.

Offence under FEMA - cash money which was seized from the residence the husband of the petitioner No.1 and two other petitioners, who are the daughters, belonged to the petitioners - noticees referred therein were asked to give response to the same within 30 days from the date of receipt of the said notice as to why adjudication proceedings as contemplated under Section 16 read with Section 13 of FEMA, 1999 should not be held against them - HELD THAT:- Writ Court in exercise of its Constitutional writ jurisdiction under Article 226 of the Constitution should not investigate the ownership of such disputed amount of cash money seized from the possession of one of the noticees at Kolkata in course of search and seizure in question while petitioners are claiming the same as their own money. It is well settled principle of law that High Court ....... + More

Offence under FEMA - Levy of penalty post compounding orders - Power to compound contravention - HELD THAT:- The compounding order is passed on 20.11.2008 and the adjudication order levying penalty is passed on 21.11.2008, i.e., one day after the passing of the compounding order. Sub-section (2) of section 15 as alluded to hereinabove clearly envisages a position that once a contravention has been compounded under sub-section (1) (which in the present case has been compounded on 20.11.2008), no proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing the contravention. We cannot hold petitioners responsible for contravention once the compounding orders have been passed. We have noted that there is a gap of “one day” between the passing of the two s....... + More

Offence under FEMA - Scope of alternate remedy - violation of Section 4 of FEMA - Whether the writ petition is liable to be dismissed as not maintainable on the ground of availability of alternate remedy and the writ petition is premature? - HELD THAT:- FEMA is a complete Code in itself and is an act to consolidate and maintain law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange management in India. It also states that when statute creates a special mechanism for adjudication and when statute itself provides for remedy that too in a physical statute, a writ petition should not be entertained ignoring the statutory dispensation. The above judgment in Raj Kumar Shivhare [2010 (4) TMI 432 - SUPREME COURT] was rendered on ....... + More

Amounts released despite the stay order - on query ASG accepts this - HELD THAT:- Prima facie this is contempt of the orders of this Court. On our asking the query as to which of the Officer(s) to whom the contempt has to be issued, learned senior counsel states that the amount will be released within 3 days and that this Court may hold its order on issuance of notice of contempt. We take this stand of the learned ASG on record. Insofar as the constitution of the Tribunal is concerned, the affidavit states that the Search-cum-Selection Committee was appointed in terms of Order dated 26.10.2001. The process thereafter is taking place. It is pointed out to us that the Chairman demitted office on 21.9.2019 being a retired judge of the High Court and thereafter a Single Member Tribunal doing only interim proceeding work and he too demitted of....... + More

Provisional attachment orders made under the provisions of FEMA - prayer for grant of interim directions was opposed by learned CGSC who contended that the Certificate of Registration (COR) of the petitioner already stands cancelled by the Reserve Bank of India (RBI) - HELD THAT:- Insofar as the question of cancellation of the COR is concerned, the Court notes that the same would have no bearing on the issues which arise in the present writ petition since that constitutes action taken by the RBI under the statutory provisions contained in the Banking Regulation Act, 1949. The said action would only impact the right of the petitioner to continue the business which was permitted. The Court notes that insofar as the release of Rs. 15.5 crores is concerned, it was submitted by Mr. Ganesh that the aforesaid sum has not been released in fact an....... + More

Classification of Services - Site Formation and Clearance, Excavation and Earthmoving and Demolition Service - activity “Dismantle” is different from the activity “demolition” or not - HELD THAT:- The appellant had merely carried out dismantling activity. This activity, in no way, can be considered as a taxable service under the category of “site formation and clearance, excavation and earthmoving and demolition service” inasmuch as the work assigned under the work order for do not attract any of the clauses itemized in the definition provided under Section 65(97a) ibid. Thus, the activities undertaken by the appellant will not fall under the taxing net for levy of service tax under the disputed taxable service. There is merit in the finding of the Ld. Commissioner. Therefore, the work undertaken by the....... + More

Constitutional Validity - Chargeability of service tax on sale and supply of electricity - Section 66D(k) of the Finance Act, 1994 and the impugned Notification No. 32/201 0-Service Tax, dated 22-6-2010 - petitioner’s challenge to Section 66Dk of the Act is premised on the basis that placing the service relating to transmission or distribution of electricity by electricity transmission or distribution utility would mean that consumption of electricity is chargeable to service tax - HELD THAT:- It is relevant to note that by virtue of the said notification, the Government of India has “exempted taxable services provided to any person by a distribution licensee, a distribution franchisee or any other person by whatever mean called as authorized to distribute the power under the Electricity Act, 2003, from the scope of Section 66....... + More

Demand made by issuance of Form SVLDRS-3 - demand on the ground that the tax dues comprise of only duty amount and, therefore, only deposit of any stage is allowed under Section 124 (2) of the Finance Act, 2019 pertaining to the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- It is not in dispute that the Petitioner has, prior to the issuance of the show cause notice, paid an amount of Rs.1,49,35,618/- electronically out of which a sum of Rs.1,09,06,948/- was deposited under the Accounting Code 00441480 as tax receipts and Rs.40,28,670/- was deposited under Accounting Code 00441481 towards interest under other receipts. That, during the pendency of the show cause notice, Petitioner had also requested for change of Accounting Code in respect of the interest amount to the Accounting Code relevant to tax receipts which r....... + More

Levy of service tax - Tour Operator Service - case of Revenue is that appellant recovered the actual ticket fares from the customers but paid only the agreed price to the Airlines, which was much less than the ticket cost - Whether the activity undertaken by the appellant would get covered under taxable service provided under tour operator service? - extended period of limitation - HELD THAT:- As per the agreement the appellant conducting tours, offering specially designed package tour to their customers and are operating as “Tour Operator” and are booking tickets as per the agreement. Whereas they are paying service tax under the category of “Air Travels Agent Service” however appellant are liable for payment of Service tax on the total value of ticket which includes the cost of package tour provided by Appellant ....... + More

Business Support services - Branch Network Fee - whether the ‘Branch Network Fee’ received by the appellant under the agreements is taxable under ‘Business Support Service’? - time limitation - it was held by Tribunal that the proceedings are barred by limitation of time and hence, the appeal should succeed on the ground of limitation as well. HELD THAT:- There are no reason to interfere in this Civil Appeal. The Civil Appeal is dismissed accordingly.

Levy of Service Tax - activity of renting/leasing - HELD THAT:- Having gone through the relevant provisions of the Finance Act, 1994 with respect to the Service Tax and Section 65 (105) (zzzz) and Section 66D and taking into consideration the decision of this Court in the case of KRISHI UPAJ MANDI SAMITI, NEW MANDI YARD, ALWAR VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, ALWAR [2022 (2) TMI 1113 - SUPREME COURT], the Tribunal has rightly held that the appellant-Marketing Committee is liable to pay the service tax on activity of renting/leasing, which was carried out at the relevant time. No interference of this Court is called for - Appeal dismissed.

Sabka Vikas Legacy Dispute Resolution Scheme, 2019 - availability of rebate in arrears of tax - HELD THAT:- There is no challenge to the constitutionality of this Scheme. Reliance is placed by counsel for the Revenue on a decision of Apex court in the case of M/S. YASHI CONSTRUCTIONS VERSUS UNION OF INDIA & ORS. [2022 (3) TMI 110 - SC ORDER] where it was held that The High Court has rightly refused to grant relief to the petitioner for extension of the period to make the deposit under the Scheme. It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. This Court sees no reason to take a different view than the one taken by Apex Court - Petition dismissed.

Adjustment of excess service tax paid - ‘succeeding month or quarter’ used in Rule 6(4A) of Service Tax Rules, 1994 - whether the said term means immediate succeeding month/quarter or it can be anytime even after couple of years? - whether the assessee can claim any adjustment without complying with the conditions contained in Rule 6(4B) ibid? - HELD THAT:- A perusal of the aforesaid Rule 6(4A) would make it clear that the word used is succeeding month or quarter as the case may be. Succeeding month denotes the month, which succeeds the current month, i.e., the next month and dictionary meaning of succeeding means immediately following. The aforesaid clause (4A) do not uses the word ‘any’ before the words ‘succeeding month or quarter’ as the case may be. Rule 6(4B) provides that the adjustment shall be ....... + More

Denial of benefit of Notification No. 12/03-ST dated 20.06.2003 - composite contract service - Inclusion of cost of material and service provider or not - HELD THAT:- Since the appellant have declared a material cost and the same was accepted by the service recipient, no doubt can be raised that the material cost declared in the invoice is incorrect unless it is proved contrary by the department. It is also not in dispute that the appellant have provided the composite contract to the service recipient which includes service and material. Therefore, the appellant is entitled for Notification No. 12/03-ST. The appellant have also argued that since they have provided the composite contract i.e. with material and they have discharged the VAT, their service is classifiable under works contract service. Thus, it can be seen that as against the ....... + More

Levy of Service tax - Commercial Training or Coaching service - imparting educational programmes in the areas of finance, banking, insurance, accounting, law, management, information technology, arts, commerce, education, science and technology, at bachelor's and master's level on full time campus and distance learning modes - HELD THAT:- The issue in hand has already been considered by this Tribunal at various benches namely, Hyderabad, Delhi and Ahmadabad. Reliance placed in the order of this Tribunal of Ahmadabad Bench in the appellant’s own branch of Vadodara, ICFAI BRANCH VADODARA VERSUS CCE & ST-VADODARA-I [2018 (8) TMI 556 - CESTAT AHMEDABAD] where it was held that There can not be any doubt as to the fact that the students successfully completing the educational programmes of the appellants are being selected for....... + More

Maintainability of appeal - non-compliance with Section 35F - Short payment of service tax - works contract service - HELD THAT:- There is controversy with regard to service of the show cause notice on the appellant-assessee. Further, as the Commissioner (Appeals) have dismissed the appeal for want of compliance of Section 35F, this ground could not be decided. Accordingly, this appeal is allowed by way of remand. The matter is remanded to the file of the Original Adjudicating Authority to pass a reasoned order, in accordance with law, after hearing the appellant-assessee. Appeal allowed by way of remand.

Legislative disbarment of levy of tax on goods transport agency service - clearing and forwarding agency service - inclusion of the value thereof in support service of business and commerce - Amalgamation of two services - it was held that The two services are rendered independently even if the transactions of the appellant are with the same recipient and, therefore, is not ‘clearing and forwarding agency’ service. The treatment of ‘goods transport agency’ provided after 1st July 2012 continues to remain unchanged and the substitution of ‘support service of business and commerce’ or of ‘clearing and forwarding agent’ service with the omnibus ‘service’ has not altered the delineation to offer any support to the finding in the two impugned orders. HELD THAT:- Issue notice, returnable in four weeks.

Exemption from service tax - works contract service - applicability of Clause-14 (a) of Mega Exemption Notification No.25/2012 dated 20.06.2012 issued by the Government of India - HELD THAT:- As per Clause-14.3 of the Circular under No.1053/02/2017-CX dated 10.03.2017, at least three opportunities of personal hearing should be granted by the authorities before the final adjudication of a matter. In the present case, only two opportunities were given o n 16.09.2022 and 29.09.2022. Even after communication of the order dated 21.09.2022 via email on 18.10.2022, the respondent No.3 did not provide the third opportunity to the petitioner in an illegal, arbitrary and high handed manner - the impugned order dated 16.11.2022 passed by the respondent No.3, apart from being illegal, arbitrary and without jurisdiction, is apparently perverse and fra....... + More

Rejection of Application for condoning the delay in filing an appeal - sale of space or time for advertisement - HELD THAT:- The Petitioner stated that discussions & deliberation were made in the Cabinet on the representations of the Railways for exemption from service tax liability and as result of the same, an amendment has been introduced in the Act of 1994 by incorporating section 99 in the Finance Bill-2013. This information was circulated to all the Zonal General Managers of the Indian Railway by the Ministry of Railway through Railway Board by Circular dated 5 March 2013. The Petitioner has stated that thereafter, the Respondents also did not pursue the demand raised by them under the show cause notice presuming that exemption is granted to the Railways for the period in question. When the Petitioner received the demand, the Pe....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme - declaration of the petitioners rejected by not issuing Discharge Certificate by the Designated Committee under SVLDRS - rejection on the ground that the petitioners did not make payment within the stipulated time as per Rule 7 of the Rules - HELD THAT:- On perusal of the bank statement furnished by the petitioners, it clearly shows that amount of 1,51,15,378/- was debited from the account of the petitioners on 30.06.2020. Therefore, for all intent and purpose once bank account of the petitioners is debited, it amounts to making payment by the petitioners. Even the payment uploaded status provided by the ICICI bank of the petitioners shows that payment was uploaded by the bank on 30.06.2020 at 18:28 hours and 20:23 hours and file status also shows that the same was processed. Therefore, it....... + More

Levy of service tax - Business Support Service or not - Cirket Player - service tax levied under this head on the ground that Appellant wear the team clothing which bears the brands/ marks of various sponsors and they are also required to participate in promotional /public events of the franchisee thus they are providing Business Support Service - existence of employer - employee relationship or not - HELD THAT:- Though in the impugned order the appellants were made liable to pay service tax under the business support service but as, no specific entry as mention in the definition of “Business Support service” has been shown to be applicable to levy service tax. It is not appearing from the finding of the impugned order as how the activity of appellant covered under the above category of services. The apparel that they had to w....... + More

Non-payment of service tax - advances received from clients in relation to the services to be provided - irregular availment of CENVAT credit of in respect of capital goods and utilization thereof - extended period of limitation. Whether the amount of Rs. 6,72,23,160/- received by the appellant from M/s. Indus Towers Ltd. should be treated as an advance, on which service tax is to be levied as contented by the department, or it should be treated as a security deposit which is not susceptible to levy of service tax, as contented by the appellant? - HELD THAT:- Paragraph 6.7 of the Agreement provides that the appellant shall, at its own cost, install, operate and maintain the Hybrid Solar Solution for a period of 10 years for which M/s Indus Tower Ltd. shall 5. Service Tax Appeal No. 52426 of 2019 decided on 22.10.2021 pay an advance in res....... + More

Levy of Service Tax - Business Auxiliary Service - providing service to M/s Vodaphone Essar Digilink Ltd. as their franchisee for sale/distribution and marketing of the SIM cards and recharge coupons - demand of service tax alongwith the penalties - Extended period of limitation. Whether extended period of limitation has been correctly invoked in the show cause when on an identical issue a show cause notice was earlier issued to the appellant by the Department? - HELD THAT:- As per Section 73 of the Finance Act, 1994 demand invoking the extended period of limitation can be issued where service tax was not paid by reason of (a) fraud or (b) collusion (c) wilful mis-statement (d) suppression of facts or (e) violation of act or rules with an intent to evade payment of duty. It is a well settled legal principle that “suppression” ....... + More

Short payment/nonpayment of service tax under RCM - Tour Operator Services - Event Management Service - Business Auxiliary Service - Business Support Services - extended period of limitation - revenue neutrality - Imposition of penalty under Section 78 and 78 A on the Director - HELD THAT:- The appellant is entitled to and have rightly taken cenvat credit on the invoices addressed to the Bangalore office, and the invoices in the name of the Director, due to business exigency. Further, admittedly the appellant have received services in question and the payments have been made for such services by the appellant/assessee only. Further, the service is qualified as input service. Accordingly, the cenvat credit of Rs.3,01,045/- is allowed. Disallowance alleging short payment of service tax - short payment is due to non-recognition by Revenue of....... + More

Levy of service tax - business of extraction and selling of coal from open cast mines - declared service or not - amount received by the appellant towards penalty, earnest money deposit forfeiture and liquidated damages - whether this would amount to consideration “for tolerating an act” on the part of the buyers of coal/contractors, for which service tax would be levied under section 66 E(e) of the Finance Act? - period of dispute in the present appeal is from July 2012 to March 2016. HELD THAT:- Section 65B (44) defines ‘service’to mean any activity carried out by a person for another person for consideration, and includes a declared service. Under section 66E (e), a declared service shall constitute agreeing to the obligation to refrain from an act, or to tolerate an act or situation, or to do an act. Section 66....... + More

Levy of Central Excise Duty - Compounded levy scheme - breach of rule 8(3A) of Central Excise Rules, 2002 - HELD THAT:- The provisions of rule 8 of Central Excise Rules, 2002, as prevalent in September and October 2008, had been breached and that the appellant herein upon being aware of the breach had not made good the deficiency immediately but awaited the report of audit in 2009. On the surface, it would appear that the discharge of duty liability in November 2009 did not suffice to restore the privilege of clearance of goods by debit of CENVAT credit account as the appellant continued to be in breach for the period till then. It is not recorded anywhere that the debit had ceased at any stage before surrender of the registration certificate in December 2010. We are inclined to take note of the developments between the takeover of the un....... + More

CENVAT Credit - common input services used in taxable as well as exempt goods - whether the appellant is liable to pay 10% of the value of exempted goods when they have availed the cenvat credit on common input service used in the exempted and dutiable goods however, subsequently, the entire cenvat credit on common input service was reversed? - levy of personal penalty - suppression of facts or not - extended period of limitation - HELD THAT:- This issue has been considered in various judgements as cited by the appellant wherefrom we find that once the assessee has reversed the proportionate credit attributed to the exempted goods, no demand of 10% of the value of goods can be raised by the department. Reversal of proportionate credit is one of the option provided under Rule 6(3). Therefore, it is upto the assessee which option needs to b....... + More

Clandestine clearance - Clearance of sugar in excess to the quota allowed to them and on this excess clearances, parallel invoices were issued whereas no duty was paid on the parallel invoices - levy of penalty under Rule 26 for the charge of abatement in evasion of duty by the company - HELD THAT:- The fact of clandestine removal done by the company M/s Shree Sardar Co-operative Sugar Industries Limited is not under dispute as the company has issued parallel invoices on which no duty was paid. The transaction were also not booked properly in the books of accounts. Against the said parallel invoices, the company also received the payment which intentionally not shown in the sales account but shown as deposit against the respective customers, therefore, it clearly transpires that the company and its board under systematic modus operandi, c....... + More

Reversal of CENVAT Credit - seeking permission to retake credit of wrongly reversed amount - case of Revenue is that the amount was correctly reversed under Rule 6 (3) of CCR as the option once exercised to reverse amount in terms of Rule 6 cannot be changed during the financial year - HELD THAT:- The fact is not under dispute that the appellant’s products namely, ‘Colour Positive Unexposed Cinematographic Film’ became exempted vide notification No. 33/2011-CE dated 25.06.2011. In case of goods became exempted for the purpose of cenvat, the procedure prescribed under Rule 11(3) need to be followed - From the provision of said section, it is clear that in case of any dutiable goods became exempted, the assessee is required to reverse the cenvat credit in respect of inputs lying in stock or in process or is contained in th....... + More

Cenvat Credit - Duty paying documents - Disallowance of part of CENVAT credit availed by the appellant on incurring of transportation charges paid to Indian Railways - HELD THAT:- The appellant has led sufficient evidence with regard to the cenvat credit under dispute, that they have received the certified copy of RR in question given by the Railways and on the body of the RR, amount of service tax and cess is duly reflected. Further, it is found that the period under dispute is before August, 2014 when the Government issued notification to take care of the difficulty faced by the assessee, in view of the fact that Railways are issuing only a single copy of RR, which was deposited with the Railway at the time of delivery of the goods. Thus, during the relevant period, the practice was that the assessee retained one Xerox copy which was certified by the Railway staff. The benefit of cenvat credit under dispute is allowed - appeal allowed.

Rejection of refund claim - time limitation - rejection on the ground that the same has been filed after one year from the relevant date i.e. date of the final order of this Tribunal and accordingly, held that the claim is barred by limitation under Section 11B of the Central Excise Act - unjust enrichment - HELD THAT:- The Court Below has erred in rejecting the refund claim on ground of limitation, as evidently, the court below has failed to take notice of the transitory provisions under the CGST Act. The refund claim is not barred by limitation. Accordingly, this appeal is allowed and the impunged order is set aside - it is further directed that the Adjudicating Authority to grant the refund within 45 days from the date of receipt of this order along with interest under Section 35 FF, @ 12% p.a. - appeal allowed.

CENVAT Credit on inputs used in the manufacture of Sulphur Powder falling under sub-heading No. 2503 0090 of Central Excise Tariff Act-1985 - denial of credit on the ground that the Sulphur Powder is correctly classifiable under sub-heading No. 2503 0090 which attracts nil rate of duty - Revenue Neutrality - Applicability of Rule 16 of Central Excise Rules 2000 - HELD THAT:- The appellant is not disputing the classification however their contest is that once the duty on the finished goods was paid even though it attracts nil rate of duty, the cenvat credit cannot be denied - there is no dispute that the appellant have paid the excise duty on the finished goods which is more than the cenvat credit availed on the input used in the said finished goods, therefore, this is clear case of Revenue neutral, for this reason, demand cannot be sustai....... + More

Recovery of CENVAT Credit - ineligible duty paying documents - recovery sought on the ground that the invoices does not mention credit registration number of the consignee, registration number of the carrier vehicle and delivery of the goods was made at a place other than the factory - time limitation - HELD THAT:- It is undisputed that the goods covered under the invoices were actually received at the Appellant’s factory and those goods were used for manufacture of their final products. It is also undisputed that Excise Duty was paid on those goods which are subject matter of the invoices. In view of the documents submitted by the Appellants, it is found that there is no dispute that the goods have been received in the factory and accordingly the impugned order denying the CENVAT Credit in respect of the invoices is not correct. Th....... + More

Carry forward of Cenvat credit after the date of availment of exemption Notification No. 30/2004-CE dated 09.07.2004 - whether the said credit can be utilised for payment of duty - HELD THAT:- The entire case of the department is that since the appellant have availed the exemption Notification No. 30/2004- CE dated 09.07.2004, they are not entitled to carry forward the accumulated Cenvat credit as on date of exemption Notification. Accordingly, the same was not eligible for utilisation for payment of duty. In the facts of the present case the notification No. 30/2004-CE is admittedly a conditional one. In terms of strict provision of Rule 11(3) of Cenvat Credit Rules, 2004, the bar of lapsing of credit is applicable only when the assessee avail the absolute exemption notification. Therefore, in the present case exemption notification No. ....... + More

Irregular availment of CENVAT Credit - Inputs (steel) can be treated as any input used for the manufacture of their finished goods i.e. MS Ingot or not - demand of CENVAT Credit alongwith penalty - HELD THAT:- The manufacturer has taken entire credit in respect of inputs used in or in relation to the manufacture of the final products. It is seen that the suppliers are registered Central Excise dealers. The invoices under which the consignment was received by the Appellant is not in dispute. The said invoices clearly indicate duty-paid character of the said goods. It is also undisputed that the said inputs were received in the factory of the Appellants and consumed therein. It is the case of the Revenue that inputs being of prime quality the Appellants could not have used the same for melting. There is no restriction in the CENVAT Credit R....... + More

Wrongly availed Cenvat credit - service related to manufacturing activity of the appellant in terms of defects of import services contained under Rue 2(l) of Cenvat Credit Rules, 2004 or not - HELD THAT:- The place of providing services is not relevant for availment of Cenvat credit. Place, no doubt can be the place of manufacture or it can be any other place including the place of buyer. No doubt the after sale service can also be eligible for Cenvat credit as was held by this Tribunal in the case of M/S CASE NEW HOLLAND CONSTRUCTION EQUIPMENT (I) PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, UJJAIN [2021 (8) TMI 963 - CESTAT NEW DELHI] but the basic requirement is that the service should have been provided by the manufacturer or by any other person on his behalf to the consumer. Thus, even post removal service can be eligible to Cenv....... + More

Maintainability of appeal - Maintainability of appeal - Jurisdiction under service tax vs central excise - Appropriate authority to file claim - Commissioner (Appeals) under section 35A of the Central Excise Act, 1944 or Section 85 of the Finance Act, 1994 in Form S.T.4. - recovery of the inadmissible Cenvat Credit under Rule 14 of the Cenvat Credit Rules, 2004 read with the provisions of Section 11A(4) of the Central Excise Act, 1944 - HELD THAT:- The relevant provisions contained in Section 35A ibid should be applicable for filing the appeal before the Commissioner (Appeals). However, in this case, Revenue has filed the appeal under Section 84 of the Finance Act, 1994 and the said appeal was entertained and disposed of by the learned Commissioner (Appeals) under such statutory provisions. Since, the impugned order was passed under a sta....... + More

Refund of Cenvat Credit vs Re-Credit of Cenvat Credit - Scope of SCN - Show-cause notice sought to question the suo motu reversal entry dated 31.03.2010 inasmuch as the Appellant should have sought for refund thereof under Section 11B of the Act - It is case of the Appellant that the Order-in- Original has travelled all the way beyond the Show-cause notice - HELD THAT:- The Appellant had discharged the duty burden from their PLA Account and as such, there is no dispute about the same. With such payment of duty out of PLA, they have reversed the debit entry made by them in their Credit Account which was used for payment of duty earlier. Though there was no proposal in the Showcause notice to deny such re-credit, the original Adjudicating Authority went ahead and even after accepting that the duty was paid subsequently in cash, disallowed t....... + More

Availment and utilization of CENVAT Credit - registration of premises - allegation is that the CENVAT Credit pertained to a period prior to registration and there is no scope for accepting Cenvatable documents which do not bear the name of their factory premises - HELD THAT:- The Ld.Adjudicating authority has observed in the Adjudication order where it was held that The noticee pleaded for their invoices with earlier Office address for consideration with judicial decisions. In the said show cause notice it was alleged that invoices were not been consigned to the address (registered address) of the assessee and CENVAT is not admissible in this grounds also. Here I cross-checked their payments and found they have paid amount for the inputs in question. It has been held by the Tribunal, High Courts and Supreme Court that substantial benefit ....... + More

Violation of principles of natural justice - appellant have been asking consistently the copy of show cause notice, inspite of which there were failure to provide copy of SCN to noticee - HELD THAT:- It is found that right from adjudication stage the appellant has taken a stand that they have not received the show cause notice and they have been pursuing the same with the adjudicating authority. From the correspondence of the appellant it is clear that the appellant have been asking consistently the copy of show cause notice. We fail to understand that why the copy of show cause notice cannot be given to the noticee which is the foremost requirement as per principle of natural justice. Accordingly, the adjudicating authority has gravely violated the principle of natural justice by not providing the copy of show cause notice to the appella....... + More

Irregular availment of CENVAT Credit - input services - transport service of Fly Ash - services obtained by the appellant for removal of coal fly ash from the captive power plant which is used for generation of power, which in turn, is captively consumed for manufacture of excisable goods - denial on the premise that it has no nexus directly or indirectly in or in relation to manufacture and clearance of the final products upto the place of removal - HELD THAT:- The removal of coal fly ash from captive power plant is a necessity and without such removal, the captive power plant cannot work. As such, removal of coal fly ash is admittedly connected with the production of power, which in turn, has nexus with the manufacturing of the Appellant’s final product. Revenue’s objection is that since the coal fly ash is non-excisable ite....... + More

CENVAT Credit - input services - Rent-a-Cab service - denial on the ground that the Rent-a-Cab service is excluded from the purview of definition of input service - Applicability of exclusion Clause given in Rule 2(l) of Cenvat credit Rules, 2004 - HELD THAT:- The exclusion is provided in respect of those Rent-a-Cab service where the vehicle taken on rent is not a capital goods. This very issue has been considered by this Tribunal in M/S. MARVEL VINYLS LTD. VERSUS C.C.E. INDORE [2016 (11) TMI 1126 - CESTAT NEW DELHI] where it was held that As such the interpretation of the lower authorities that motor vehicle are not capital goods for the services recipient cannot be appreciated in as much as motor vehicles are admittedly capital goods in terms of the Rule 2 (A) of Cenvat Credit Rules. Reliance also placed in the case of GUALA CLOSURES (I....... + More

Denial of refund claim - failure to produce proof of refund to the individual taxi owners - denial of refund on the ground that in respect of these claims appellant had failed to establish that the amount were refunded actually to individual taxi owners - applicability of N/N. 5/98-CE - HELD THAT:- On verification of documents as reflected in the remarks column above and having satisfied ourselves that the mismatches as stated are very minor in nature. Further it is also noted that there are errors in recording the engine number in the show cause notice whereby same engine number appeared twice in the show cause notice which is practically impossible. The verification as undertaken in these cases cannot be reason for denial and the verification has to be caused by referring to all other details. Having satisfied with correctness of these ....... + More

CENVAT Credit - Education Cess and Secondary & Higher Education Cess under the invoice issued by the 100% EOU - appellant’s submission is that the denial of Education Cess was not subject matter of show cause notice - HELD THAT:- From the proposal in the show cause notice, it can be seen that the demand of Cenvat Credit is not only in respect of basic Excise duty but also of Education Cess and Secondary & Higher Education Cess. Therefore, in this fact it cannot be said that the order denying the Cenvat credit on Education Cess and Secondary & Higher Education Cess is travelling beyond the scope of show cause notice. Hence, the demand was rightly made by the adjudicating authority. Accumulation of unutilized credit of Education Cess and Secondary and Higher Education Cess while switching over to the GST regime - HELD THAT....... + More

Demand of interest on late payment of National Calamity Contingent Duty (NCCD) - July, 2017 to July, 2019 in respect of Unit-I and August, 2017 to July, 2019 for Unit-II - HELD THAT:- The interest is payable for default in depositing the tax by the due date voluntarily or after determination of the amount of duty under Section 11A. Here both the conditions are not available to Revenue as admittedly neither there is any determination of duty liability of NCCD under Section 11A, nor there is voluntary default in deposit of the amount of NCCD. In absence of condition precedent in Section 11AA of the Act, no interest can be demanded from the appellant -assessee. Further taking judicial notice that the appellant was prevented from deposit of dues, due to glitch on the portal, which is wholly attributable to inaction on the part of Revenue. Thus, Revenue cannot take advantage of its wrong doing, by levy of interest. Appeal allowed.

Principles of Natural Justice (Audi Alteram Partem) - rectification of mistake - whether in all cases where rectification of the Assessment Order is sought for under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 is there a need for the Assessing Officer to provide an opportunity of hearing to the Dealer? - HELD THAT:- In the case of AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION VERSUS THE DESIGNATED AUTHORITY & ORS. [2011 (1) TMI 7 - SUPREME COURT], the 1st proviso to Section 84(1) of the Act, which makes it clear that only in cases, where the rectification which has an effect of enhancing the assessment or penalty, there is a statutory requirement for granting reasonable opportunity of hearing to the Dealer and not when the assessment has been confirmed. The application of the Principle of Audi Alteram Partem is a general princi....... + More

Disallowance of Input Tax Credit - failure to produce the relevant documents along with tax invoices despite notices - Section 100A(2) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- According to the learned counsel for the appellant, provisions of Section 100A(2) of the Delhi Value Added Tax Act, 2004 do not support the stand of the respondent. He submits that although the electronic communications may not be required to be personally signed, in terms of Section 100A(2), the said communications must necessarily be authenticated by the digital signature of the concerned authority - The learned Tribunal did not decide the controversy, but remanded the matter to the learned OHA. This was, essentially, for the reason that one of the contentions advanced on behalf of the appellant was that the learned OHA had not put the issue of limitat....... + More

Maintainability of petition - appeal provided against the reassessment order or not - Validity of re-assessment order - challenge on the ground of the same being invalid due to non-availment of an opportunity and the final hearing not being given despite the acknowledgment of the lock down due to the COVID-19 virus - whether the circumstances existed at the relevant point of time had actually made any breach of principle of natural justice? HELD THAT:- Noticing the fact that the officer concerned had the statutory time limit to meet with as the same was expiring on 31.03.2020, although later on the period of limitation had also been extended by the Apex Court in its various orders, but, the officer can be given the benefit that at the time when he actually passed this order on 25.03.2020, he may not be aware of such developments. In fact,....... + More

Condonation of delay of 163 days in filing revision - It is submitted that state entities are on separate footing from an individual and ample leeway is required to be granted to state entities since it involves betting at various stages - HELD THAT:- The delay in filing revision has been considered by this Court in COMMISSIONER COMMERCIAL TAX U.P. LKO. VERSUS M/S R.C. AND SONS RAKABGANJ LUCKNOW [2022 (9) TMI 533 - ALLAHABAD HIGH COURT], where the delay of 163 days was sought to be explained on the basis of the casual and lethargic attitude of the officials which prevails in the Department, on the part of the Officers concerned. From a perusal of the affidavit filed in support of application, it is apparent that no explanation whatsoever has been given from 31st August, 2010 till 21st June, 2010. Limitation period for filing revision agai....... + More

Maintainability of petition - availability of alternative remedy - common argument of the petitioners is that Section 19(2)(ii) of the TNVAT Act permits the availment of ITC on goods purchased as ‘inputs’ in the manufacture or processing of goods in the State - HELD THAT:- All the impugned orders comprise orders of assessment, that are amenable to statutory appeal, and in one case an appellate order as well and hence, a preliminary submission has been raised assailing the very maintainability of these Writ Petitions - the question raised in these Writ Petitions revolves around an interpretation of the statutory provisions, specifically touching upon the eligibility or otherwise to ITC. The facts are undisputed. The authorities have, including the appellate authority, adopted the categoric view that the petitioners are not enti....... + More

Exemption from GST - sale of goods by the Canteen Stores Department to different Canteen Store Department situate outside the State of U.P. - Conditional nature of exemption or not - Eligibility for exemption Notification No.7037, dated 31.01.1985. HELD THAT:- From the reading of Notification dated 31.01.1985, benefit has been extended not only to the Canteen Stores Department/ Military Canteens, but also to U.P. Govt. Employees’ Welfare Corporation. The State Government found that there were certain contradictions to its earlier notifications which were issued in the years 1977 and 1981 in regard to Khadi Evam Gramodyog and Canteen Stores Department/ Military Canteens. The Circular dated 23rd July, 1987 has to be read in harmony with the Notification dated 31.01.1985, as the Notification of 1985 also provided exemptions of tax subj....... + More

Reversal of Input tax Credit - on purchase of R.E.P. license which is goods, tax has been paid by the applicant - When a dealer after purchasing any import license from open market and after paying tax at the rate of 4% as per the notification and having used the license for import of chemical and thereafter selling the goods so imported by him in furtherance of his business is entitled for the benefit of I.T.C. or not? HELD THAT:- Section 13 of the Act of 2008 is charging section which deals for grant of Input Tax Credit to a dealer liable to pay tax subject to conditions given in Column (2), in respect of all taxable goods, where such taxable goods are purchased on or after date of commencement of the Act, are allowed credit of the amount, as Input Tax Credit, to the extent provided in Column (3) of the table - if goods purchased are us....... + More

Disciplinary proceedings against the assessing officer (AO) - Validity of assessment orders passed and subsequently cancelled - complaint given by the petitioner's predecessor was paid subsequently by the two contractors - HELD THAT:- It is clear that the petitioner has not committed any misconduct and no action can be taken against him in view of the fact that the assessment orders passed against the contractors have been once again quashed by an independent assessment made by another Assessing Officer. This Court will not interfere with a charge memo but no useful purpose will be achieved if a direction is issued to the respondents to complete the disciplinary proceedings initiated against the petitioner, within a time frame as the evidence placed on record before this Court as well as the statement made by the respondents before th....... + More

Jurisdiction for re-opening of the assessment under Rule 17 (8) of the CST (O) Rules, 1967 for the years 1986-87 and 1987-88 - transaction of dispatch of goods from Rourkela Steel Plant to different branches outside the State of Odisha according to the Demand Registration Scheme - time bound supply scheme as inter-State sales within the purview of Section 3 (a) of the Central Sales Tax Act (CST Act) - HELD THAT:- Considering that the law itself was amended thereafter with effect from 8th May 2010 by inserting Section 6 (A) (3) of the CST Act, it is obvious that during the time when the reassessment orders were passed in the present case, the AO did not have the power of re-assessment. Consequently, the above question is required to be answered in the negative i.e, in favour of the Assessee and against the Department. In that view of the m....... + More

Rejection of revisional application - rejection on the ground that the appellant did not appear before the revisional authority on more than two occasions - non-appearance of the appellant on several dates - HELD THAT:- As per the assessment order dated 27th June, 2013, the tax payable was Rs. 7,36,715.58 and the assessing order records that a sum of Rs.7,13,330/- has already been paid by the appellant / assessee and the balance due is Rs.23,385.58. Thus, considering the peculiar facts and circumstances of the case, we are inclined to grant one last opportunity to the appellant to go before the appellate authority and pursue its appeal. However, if the appellant does not appear on the date fixed, the appellate authority shall be entitled to dismiss the appeal for non-prosecution. The order passed in the writ petition is set aside and cons....... + More

Maintainability of petition - availability of alternative remedy of appeal - exercise of extraordinary and discretionary jurisdiction of this Court under Article 226 of the Constitution of India, when there this alternative remedy available - Whether the material used in the project was received by the MRPL at its site in Mangaluru or by the assessee whilst the goods were in transit? - Seeking cross-examination of Transport Companies who had transported the goods from various places to Mangaluru - HELD THAT:- The Hon'ble Single Judge has taken note of one of the Assessment Orders and held that entertaining the writ petitions prematurely would cause serious prejudice not only to the assessee but also to the Revenue, who will loose their chance to argue before the two appellate forums provided in the Act and accordingly relegated the as....... + More

Exemption from Entry tax - Whether the applicant was covered within the expression 'Manufacturing Dealer' as used in the Notification dated 18.2.2003 (Annexure-2 to the Revision Application) issued under Section 4-B of the Uttar Pradesh Tax on Entry of Goods Act, 2000? HELD THAT:- The words “Manufacture” and “Manufacturer” have not been defined under the Entry Tax Act either of the year 2000 which was repealed and subsequently, enacted by the Act of 2007. The word “Manufacturer” has been defined under the Act of 1948 which means in relation to any goods, the dealer who makes the first sale of the goods in State after their manufacture. The Notification dated 18.02.2003 which provides benefit to a manufacturing dealer of entry on capital goods, plant, machinery and spare parts into local area fro....... + More

Maintainability of appeal for rectification before the Trade Tax Tribunal - error apparent on the face of record or not - order in assessment proceedings have been upheld in a revision before the Hon'ble High Court under Section 11 of the U.P. Trade Tax Act - Tribunal is competent to rectify the order of assessment by exercising powers under Section 22 of the U.P. Trade Tax Act, 1948 on the basis of declaration of law by the Hon'ble Supreme Court at a later stage or not - maintainability of application under Section 22 of the U.P. Trade Tax Act, 1948 for rectification of its own order passed under Section 11 of the U.P. Trade Tax Act, 1948. Whether in the garb of rectification under Section 22, the judgment and order of the Tribunal, having been confirmed by the High Court, can be set aside on merit? - HELD THAT:- It is not in dis....... + More

Validity of assessment order - whether the works contract awarded to assessee for the year 1989-1990 could be divided into two parts i.e. supply of goods and works contract? - HELD THAT:- It is not in dispute that a written agreement was executed between the assessee - revisionist and Auraiya Gas Power Project. Clause 2.4 categorically provided that the cost included the material and the labour for laying pipeline, the work was to be executed by the assessee. Clause 3 read with Clause 3.1 of the Contract mentioned the total value of the contract as Rs.10,67,517/-. The Tribunal had noted the relevant clauses of the agreement in its judgment but relying upon specification of work/tender had segregated the contract awarded to the assessee between the work done by the assessee and the material supplied/purchased for the execution of work cont....... + More

Seeking restoration of assessment order - appellate order is non speaking order or not - validity of seeking restoration when the Tribunal ought to have remanded the case to appellate authority for passing fresh order - HELD THAT:- It is a case where a survey was made on 26.09.2015 which is not disputed to both the parties. At the time of survey, 16 persons were having food in the dhaba at around 12.40 p.m. in the afternoon which is also not disputed. As no book of accounts was produced before the survey team by the Assessee, the Assessing Authority calculated the sale made by the Assessee relying upon the survey report. The first appellate authority has reduced the quantum of tax, which the Tribunal had restored back and upheld the order passed by the Assessing Authority after giving the elaborate reasoning to arrive at the finding. The ....... + More

Time bound supply scheme - branch transfers - interstate sales - Section 3(a) of the Central Sales Tax Act, 1956 - Whether in the facts and in the circumstances of the case, the Tribunal has ignored the fact of absence of any conceivable links with the customers and the despatch of the goods to the Branch? - HELD THAT:- There can be no manner of doubt that an AO is required to examine each transaction forming the subject matter of the assessment proceedings to determine whether it amounts to a branch transfer as contended by the Assessee or an interstate sale as contended by the Department. Therefore, the decision in any particular year, even involving the same Assessee and the same scheme, need not necessarily form a precedent for a subsequent year since the transaction in each subsequent year will have to in any event be examined on a c....... + More

Reversal of Input Tax Credit - interstate sale of goods - applicability of proviso to Section 19 (2) (v) of the TNVAT Act to manufacturers also or not - HELD THAT:- The issue decided in the case of THE STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY COMMERCIAL TAXES DEPARTMENT, THE DEPUTY COMMISSIONER (CT) (FAC) VERSUS M/S. EVEREST INDUSTRIES LIMITED [2022 (4) TMI 1204 - MADRAS HIGH COURT] where it was held that When the power to the statutory authority is granted upto five years to modify the order, it cannot be said that the constitutional authorities would not have power to review the action. Therefore, concurring with the Division Bench, we do not concur with the decision of the Learned Judge to dismiss the writ petitions on the technicality of limitation, that too, when the batch was pending. Appeal disposed off.

Levy of penalty - levy based on on conjectures and surmises - transaction was duly recorded in books of accounts and accompanied by Form C and payment were made through Banking channel - HELD THAT:- This Court finds that merely on the basis of presumption and statement of the truck driver which was carrying the goods, penalty proceedings have been initiated by the assessing officer. The taxing department did not have any material on record so as to hold that there was any violation by the dealer in bringing the goods from outside the State of U.P. The Form 38 which was accompanying the goods was filled and all the tax invoice alongwith the bilti and transporter's bill was there when the truck was intercepted by mobile squad on 04.08.2016. Moreover, the statement of a truck driver cannot be the basis for initiating the penalty proceedi....... + More

Doctrine of merger - Recovery of dues (secured debt) - secured creditor has priority over the right claimed by the Revenue over secured debt or not - Section 26E of the SARFAESI Act and Section 31B of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act, 1993) - sum and substance of the contention therefore advanced by the learned Special Government Pleader is that the findings rendered by the Hon’ble Apex Court in CENTRAL BANK OF INDIA VERSUS STATE OF KERALA AND OTHERS [2009 (2) TMI 451 - SUPREME COURT] is clearly applicable to the cases on hand. HELD THAT:- Hon’ble Apex Court has held in Central Bank of India that in none of the judgments pointed out by the financial institutions in the said case, held that by virtue of the provisions contained in the DRT Act or the SARFAESI Act, 2002, first charge has been created in fav....... + More

Validity of assessment order - proper perusal/checking of records not done - non-application of mind in passing the impugned order - violation of principles of natural justice - HELD THAT:- The Commissioner of Taxes, respondent No.2, has not properly appreciated the documents on record and could have more vigilant while passing the order and as such, it would be appropriate to remand the matter back for fresh consideration. Petition allowed by way of remand.

Vacation of order restraining the transfer, selling or alienating of 11 properties purchased by a consortium of six land-owning companies - HELD THAT:- While passing an order of injunction, the Courts are required to be guided by the principles of prima facie case, balance of convenience and irreparable injury. We find that, assuming for a moment that the respondent Nos. 1 and 2 along with the other claimants have a claim of around Rs.31 crores, the entire project in an area of 115 acres cannot be stalled. If the Division Bench of the High Court found that, there was a prima facie case in favour of the respondent Nos. 1 and 2, they could have passed an appropriate order to protect the interests of the said respondents rather than stalling the entire project. It is further to be noted that the audit report dated 16th January 2023 of Ellahi....... + More

Misuse of political position by the Accused / MLA / Minister - acquiring disproportionate assets - Criminal conspiracy - misappropriation - criminal breach of trust - cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount - acquiring assets disproportionate to known legal source of income by Anosh Ekka - acquisition of lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka - applicability of presumption under Section 20 relating to Section 13(1)(e) of the P.C. Act. Assets - HELD THAT:- The evidence of assets acquired during the check period is not under challenge, nor in the name of which they have been acquired. The valuation of house has been disputed. There is no room to dispute the valuation of the land and flat purchased by registered sale deed or the vehic....... + More

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - whether non-mentioning of date as to when money was given can be fatal to the case of complainant or not? - HELD THAT:- The proviso 269-SS only prescribes the mode of taking or accepting certain loans, deposits and specified sum. The said proviso would speak to the effect that no person shall take or accept from any other person (herein referred to as the depositor). Mode of taking any loan or deposit or any specified sum, otherwise than by an account-payee Cheque or account or accepting payees and draft or use of electronic clearing system through a bank account. The proviso was inserted in the Income Tax Act debarring person from taking or accepting from any other person any loan or deposit otherwise than by account payee cheque or account payee bank draft, if the....... + More

Validity of arbitration proceedings/constitution of the arbitral tribunal - ex-parte proceedings - seeking permission to adduce evidence - whether the applicant can be permitted to adduce evidence to support the ground relating to Public Policy in an application filed under Section 34 of the Arbitration & Conciliation Act, 1996? HELD THAT:- In the present case the arbitration proceedings commenced and even the award was declared/passed by the arbitral tribunal in the year 1998, i.e., prior to section 34(2)(a) came to be amended vide Act 33/2019. Apart from the fact that it was conceded by the learned counsel appearing on behalf of the appellant before the High Court that the law prevailing prior to the amendment of Section 34(2)(a) by Act 33/2019 shall be applicable, even otherwise, we are of the opinion that the arbitration proceedin....... + More

Dishonor of Cheque - declared income was sufficient to prove loan or not - requirement of presumption once and execution of cheque is admitted - rebuttal of presumption - preponderance of probabilities - HELD THAT:- The learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by....... + More

Interpretation of statute - paragraph 4(vi)(b) of the Operating Guidelines of the National AYSUH Mission (NAM) - Constitutional Validity of proceedings under Article 136 of the Constitution - purchase of Ayurvedic drugs solely from IMPCL without inviting tenders - requirement in view of paragraph 4(vi)(b) of the Operating Guidelines of the National AYSUH Mission, that the State of Uttar Pradesh must purchase Ayurvedic medicines by adopting a transparent process after inviting tenders - violation of the operating guidelines - no involvement of ‘State largesse’ and no disposal of State property. HELD THAT:- Paragraph 4(vi)(b) does not stipulate that IMPCL will have a higher standing as compared to other manufacturing units of the State Governments and cooperatives mentioned in the paragraph. The position of the Ministry of AYUSH....... + More

Dishonor of Cheque - Effect of moratorium to non-corporate debtor/debtors dealt under Section 141 of the Negotiable Instruments Act - emergence of vicarious liability in criminal law, in terms of Section 141 of the Negotiable Instruments Act - essentials to fasten vicarious liability. Whether the moratorium provision contained in Sec.14 (1) of IBC would apply only to corporate debtor and the noncorporate debtor/debtors mentioned in Section 141 of the N.I.Act, continuing to be statutorily liable under Chapter XVII of the N.I Act? - HELD THAT:- In view of the legal position settled by the Three Bench of the Apex Court, in P. Mohanraj's case [2021 (3) TMI 94 - SUPREME COURT], holding the view that, moratorium provision contained under Section 14 (1) of IBC would apply only to a corporate debtor and the natural persons mentioned in Sectio....... + More

Scope of legislative powers - levy of tax or penalty - additional special road tax levied on transport vehicle used without a valid permit - whether the imposition of additional special road tax levied on transport vehicle used without a valid permit is not a tax but a penalty and is ultra vires the legislative powers of the State Legislature under Entries 56 and 57 of List II (the State List) of the Seventh Schedule to the Constitution? HELD THAT:- Article 246 of the Constitution lays down the subject matters of the laws to be made by the Parliament and by the Legislatures of States. According to it, three lists of the Seventh Schedule would be determining the subjects over which the Parliament may have exclusive power to make laws (List I also referred to as the Union List), subjects over which the State would have exclusive power to ma....... + More

Dishonor of Cheque - legally enforceable debt or not - whether preponderance of probabilities established that the complainant was indulging with money lending activities without any licence? - rebuttal of presumption under Section 139 of the N.I. Act or not - HELD THAT:- Since framing of points for determination by the First Appellate Court at the time of passing of the judgment or at the most at the time of hearing parties, assumes significance as in case the points for determination are framed in wrong manner, the reasoning is also going to affect. In the present matter, the learned First Appellate Court after hearing of the arguments and after perusing the entire records of the trial Court, framed the points for determination in paragraph 26 of the impugned judgment. Thus, it presumed that the learned First Appellate Court was entirel....... + More

Interpretation of statute - calculation of amount of pre-deposit u/s 18 of the SARFAESI Act - 50% of which amount the borrower is required to deposit as pre-deposit - Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - possession of one of the mortgaged property was taken by the Bank as amount demanded was not paid under Section 13(2) of the SARFAESI Act. Whether while calculating the amount of “debt due”, the amount deposited by the auction purchaser on purchase of the secured assets is required to be adjusted and/or appropriated towards the amount of pre-deposit to be deposited by the borrower under Section 18 of the SARFAESI Act? - Whether the “debt due” under Section 18 of the SARFAESI Act would include the liability + interest? HELD THAT:- As....... + More

Recovery of possession and the mesne profit/damages for wrongful and illegal occupation of the appellant - lease agreement for enjoyment and occupation of the demise premises for a specified time which expired by efflux of time in the year 2010 - HELD THAT:- The appellant did not challenge the order permitting the amendment to be carried out in the plaint. However, they chose to remain absent and did not contest the suit. Astonishingly, learned advocate for the appellant submits that the moment Supreme Court has used the expression ‘suit’ it must be construed as an un-amended suit and not the amended suit. Such misunderstanding of the tenet of the order of the Supreme Court is laudable as it is beyond any doubt that the expression ‘suit’ includes the suit with the amendment, if carried out subsequently, as the amen....... + More

Withholding of promotion of the respondent-employee - pendency of departmental proceedings - HELD THAT:- Apparently, the petitioners have succeeded in their endeavor to deny the respondent-employee the benefits of promotion, as firstly they chose to file the review to prolong the proceedings for almost a period of one year. Thereafter, after the review was dismissed they chose not to file the writ petition for a period of almost six months and only filed the same on 03.05.2017. An argument as such was raised before the Coordinate Bench on which notice motion was issued that a punishment order had been imposed on 15.02.2017. Petitioners is not aware as to whether the case of the employee for promotion had been considered or not - It is, thus, apparent that the respondent-employee has also lost interest in the litigation as none has put in ....... + More

Demonetization - Validity of N/N. 3407(E) dated 8th November 2016, issued by the Central Government in exercise of the powers conferred by sub-section (2) of Section 26 of the Reserve Bank of India Act, 1934 - validity of declaration that the bank notes of denominations of the existing series of the value of five hundred rupees and one thousand rupees shall cease to be legal tender with effect from 9th November 2016, to the extent specified in the impugned Notification - scope of judicial review - discrimination of District Co-operative Banks by excluding them from accepting deposits and exchanging demonetized notes. Whether the power available to the Central Government under sub-section (2) of section 26 of the RBI Act can be restricted to mean that it can be exercised only for "one" or "some" series of Bank notes and....... + More

Enforcement of final foreign arbitral award - restraint on first respondent from utilising the sum of INR 265 crores from and out of monies remitted by the third and fourth respondents - direction to deposit the sum of INR 265 crore in a separate lien marked account - whether the object of or consideration stipulated in the SPAs violates FEMA and, particularly, the Security Transfer Regulations? - HELD THAT:- The SSHAs deal with the investment by two non resident entities and a SEBI registered venture capital fund in an Indian company. The investment was in equity shares, CCPS and OCPS and the aggregate investment was about INR 125 crore. Under FEMA, a general prohibition in respect of dealing in foreign exchange or making payment to or receiving payment from a non-resident is contained in Section 3. This is subject to the other provision....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt - petitioners submits that the petitioner No.1 has issued signed blank cheque as security, but, the respondent has presented the same without the knowledge of the petitioners - it is submitted that admittedly the Company has not been arrayed as party in the N.I. Act case. But, the Directors of the company have been made parties in the said case. HELD THAT:- Since Durga Krishna Store Pvt. Ltd, the company has not been made an accused here in this case, and since no legal notice has also been issued to it, the complaint under Section 138 of the N.I. Act, to the considered opinion of this court, cannot be maintained against the present petitioners, without invoking the provision of Section 141 of the N.I. Act and as such the complaint lodged before the Court of learned CJ....... + More

Recovery proceedings - default in payment of loan / debt - whether recovery proceedings / recoveries under the MSMED Act would prevail over the recoveries made / recovery proceedings under provisions of the SARFAESI Act? - HELD THAT:- Sections 15 to 23 of the MSMED Act are providing a special mechanism for adjudication of the disputes and to adjudicate and resolve the disputes between the supplier and buyer - micro or small enterprise - it is observed that MSMED Act does not provide any priority over the debt dues of the secured creditor akin to Section 26E of the SARFAESI Act. At the most, the decree / order / award passed by the Facilitation Council shall be executed as such and the micro or small enterprise in whose favour the award or decree has been passed by the Facilitation Council shall be entitled to execute the same like other d....... + More

Levy of tax on advertisement - Constitutional Validity of Section 103(b)(vi), 134 containing the words "after levy of tax under Section 134 has been determined by the Corporation" and in Sections 135(1), 135(2)(ii), 135(3), 139 and Schedule (viii) to the Municipal Corporations Act, 1976 along with bye laws framed by Municipal Corporation pursuant to the aforesaid provisions - Whether impugned provisions namely Section 94(1)(b)(xiii) including the explanation thereto, Section 94(1-B) containing the words "after the levy of tax under Section 94 has been determined by Municipal council" in Sections 133(1), 133(2)(ii), 133(3), proviso (iv) to Section 142, Section 324(1)(ff) and Schedule 7 to the Karnataka Municipalities Act, 1964 along with rules/bye laws framed by Municipalities in the State pursuant to the said provision....... + More

Appointment of full time Presiding Officer in Debt Recovery Tribunal-I, Ahmedabad - HELD THAT:- Right to speedy justice is enshrined under Article 21 of the Constitution of India as held by Hon’ble Apex Court in Supreme Court Advocates-on-Record Association Vs. Union of India [1993 (10) TMI 352 - SUPREME COURT]. Non-adherence to the same would impinge upon the rights of citizens under Article 14 of the Constitution of India, inasmuch as the litigants are differently treated though placed on the same pedestal or being on par. To put it differently, litigants whose matters are before DRT-II would be able to get the relief at the hands of DRT-II, whereas litigants who are similarly placed and seeking reliefs by filing the petition, which is pending before DRT-I, are not able to get the relief namely, their applications or petitions are....... + More

Enhancement to property tax in terms of the Chennai City Municipal Corporation Act,1919 and the Coimbatore City Municipal Corporation Act, 1981 - HELD THAT:- The efforts to rationalize property tax assessment continued and G.O.Ms.No.11 dated 04.01.1983 considered a situation that ‘rent’ may be removed from the ambit of the enactment and that the mode of assessment may be shifted wholesale to a new basis, such as value of land, plinth area, location and usage after dividing the area into various zones and sub-zones. Following this methodology will obviate the necessity for arriving at a annual rental value or fair rent method. After examining the proposal from the Vice Chairman, Madras Metropolitan Development Authority under cover of his letter dated 30.03.1982, the Commissioner, Corporation of Madras was directed to undertake....... + More

Seeking exemption from filing the impugned order - Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- Apart from the statutory requirements Under Section 86(7) of the Act of 1951, of expeditious proceedings and conclusion of trial of the election petition within six months from the date of presentation, it is even otherwise indisputable that this litigation, by its very nature, calls for expeditious proceedings while being assigned a specific priority by the Court dealing with the same. In the present matter, we do not find it necessary to refer to or dilate upon the previous proceedings, including the order passed by this Court on 21.03.2021 but, find it difficult to countenance the position that even after pronouncement of the result on the application Under Order VII Rule 11 Code of Civil Procedure on 15.06.2022, the ....... + More