Faceless Assessment u/s 144B - as argued no prior show cause notice as well as draft assessment order issued - HELD THAT:- As no prior show cause notice as well as draft assessment order had been issued and no hearing had been given before passing the impugned assessment order, there is a blatant violation of principles of natural justice as well as mandatory procedure prescribed in “Faceless Assessment Scheme” and stipulated in Section 144B of the Act. It is also settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition where the proceeding is carried out in violation of principles of nature justice - like in the present case. Thus matter is remanded back to the Assessing Officer, who shall issue a draft assessment order and grant an opportunity of hearing to the petitioner by way of Video Conferencing and thereafter pass a reasoned order.

Reopening of assessment u/s 147 - deduction of franchise fee paid by the respondent to M/s Satyam Cineplex Limited was wrongly allowed as it gave an enduring benefit to the respondent and was an expense of capital nature - HELD THAT:- The period of four years has to commence from the date of the decision in the appeal filed by the respondent against the earlier assessment order. For this purpose, he has placed reliance on the third proviso to Section 147 which has been reproduced hereinabove. In our opinion the said proviso does not in any manner extend the period within which action under Section 147 of the Act can be initiated by the Department. It merely empowers the AO to assess or reassess such income, which is not involved or is the subject matter of any appeal, reference or revision, and has escaped assessment. It does not grant an....... + More

Revision u/s 264 - computation of income from capital gains - HELD THAT:- The expression ‘capital asset’ is defined under Section 2(14) of the Act. While defining capital asset under the said provision, agricultural land in India is not included. However, by way of exception, certain agricultural lands are included which are stated in Section 2(14)(iii)(a) or (b) of the Act. Before applying Section 48 of the Act, it is necessary to ascertain whether the subject matter of transfer, namely immovable property or land is agricultural land or not. If it is to be construed to be agricultural land, then the parameters as stipulated under Section 2(14) has to be applied. In the instant case, we find that the Assessing Officer has not applied the parameters as stipulated under Section 2(14)(iii), inasmuch as either sub-clause (a) or su....... + More

Reopening of assessment u/s 147 - no original assessment order in the case of the assessee passed - HELD THAT:- Admittedly, there is no original assessment order in the case of the assessee and it was only an intimation under Section 143(1)of the Act, which cannot be treated to be an order in view of decision of the Supreme Court in Rajesh Jhaveri [2007 (5) TMI 197 - SUPREME COURT]. Therefore, the question of re-assessment of the income of the assessee by the Assessing Officer does not arise. In the proceeding under Section 148 of the Act, it was the first assessment and the same could have been done considering all the claims of the assessee. Therefore, the decision rendered by the Supreme Court in Sun Engineering Works (P.) Ltd [1992 (9) TMI 1 - SUPREME COURT]had no application to the fact situation of the case. Even assuming for the sa....... + More

Reopening of assessment u/s 147 - reopening on two issues one in respect of retention money and the other in respect of difference in profits admitted in the P & L account - HELD THAT:- Reasons furnished for reopening of the assessment dated 18.12.2018 would clearly reveal that incorrect claim and reduced income were identified. As stated that the issue of retention money was not considered by the AO in the original assessment order. Thus, the reopening of assessment cannot be construed as change of opinion.. This Court is of the considered opinion that once the Department could able to establish that reopening of assessment is made based on the new materials or with reference to the information which were not truly and correctly provided by the assessee at the time of original assessment, then power under Section 147 of the IT Act ca....... + More

Assessment u/s 153A - absence of any incriminating material found in search - HELD THAT:- Hon’ble Delhi High Court in case of CIT(A) vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] held that no additions to be made in assessment framed u/s 153A of the Act in the absence of any incriminating material, their assessment were not abated. In the present AY 2009-10, the return was filed on 12th November, 2009 and the due date of issuing of notice u/s 143(3) is 30th September, 2009 the date of search is 9/5/2012 and date of filing of return post search is 10/09/2013. It can be observed that no proceedings were pending on the date of search for Assessment Year 2010-11. The date of filing original returns u/s 139(1) was on 6/8/2010, the date of search was 9/5/2012. The return filed u/s 153A was on 10/9/2013 and due date of issuance of ....... + More

Reopening of assessment u/s 147 - non-disclosure of loan given by the assessee to his wife Smt. Sulochana for purchase of agricultural land - whether the AO can limit his powers to assess income which is escaped from tax on the basis of reasons recorded for reopening of assessment or he could further proceed to any other income which is escaped from tax and which has subsequently came to his knowledge during the course of reassessment proceedings or not? - HELD THAT:- In this case, on perusal of facts available on record, it is abundantly clear that the AO has formed reasonable basis of escapement of income for taxing income escaped assessment on account of non-disclosure of money lent by the assessee to his wife for purchase of agricultural lands. However, in the reassessment proceedings, the AO has accepted the explanation of the assess....... + More

Assessment of trust - depreciation on assets whose cost has been allowed as application of income to charitable purpose u/s.11(1)(a) - HELD THAT:- Hon’ble Supreme Court in the case of CIT v. Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT] where after considering the amendment in section 11(6) of the Act, by the Finance Act, 2014 held that the assessee is entitled to depreciation u/s. 32 of the Act on assets whose cost has been allowed as application to charitable purpose. The court further observed that once the assessee is allowed depreciation, it shall be entitled to carry forward depreciation as well. The Hon’ble Karnataka High Court in the case of Pr.CIT (Exemptions) vs. Shushrutha Educational Trust [2018 (12) TMI 329 - KARNATAKA HIGH COURT, had considered an identical issue and by followi....... + More

Penalty u/s 271(1)(c) - Defective notice u/s 274 - non specification of charge - whether penalty proceedings had been initiated i.e., whether for concealment of particulars of income or for furnishing of inaccurate particulars ? - HELD THAT:- In PCIT vs. Sahara India Life Insurance Company Limited case [2019 (8) TMI 409 - DELHI HIGH COURT] upheld the view taken that the notice issued by the learned Assessing Officer would be bad in law if it did not specify under which limb of section 271(1)(c) of the Act the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or for furnishing of inaccurate particulars thereof. AO to assume jurisdiction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of jurisdiction by the learned Assessing Officer to ....... + More

Unsecured creditors - Addition u/s 68 - Flow of funds inter se the group concerns - loans from directors - Money circulated from one concern to other - HELD THAT:- Why the assessee discharged its obligation to M/s. Modsal Frozen Foods Pvt. Ltd. and why the assessee accepted loan from one of its directors need not be enquired by the Assessing Officer. Suffice it to record that the amount is neither tainted nor unaccounted. It is only the accounted money of the assessee that is used for the purpose of discharge of obligation. Therefore, it cannot be said that the amount paid to M/s. Modsal Frozen Foods Pvt. Ltd. is unaccounted money and on the same analogy amounts in the hands of Mohd. Sayed which was given as loan to the assessee cannot be unaccounted money. In the same way, in so far as Mohd. Naeem is concerned, he is also having inter-ba....... + More

Disallowance of the interest expenditure on the loan taken by the assessee - HELD THAT:- In this case, while the loan was granted to a third-party real estate developer M/S. ABW Infrastructure with strategic intent, the loan per se was for the purpose of earning interest income in terms of Agreement for effective and secured deployment of interest-bearing funds, which did not result in acquiring any controlling interest in M/S. ABW Infrastructure. In the absence of any finding that the loan from M/s. OIPL on which interest expense has been incurred, was used for personal purposes of the assessee, keeping in view the proximity of time in obtaining loan from OIPL for the immediate necessity of meeting the expenditure for conversion of land uses and also other business prospects, and in lending the idle funds to M/s M/S. ABW Infrastructure f....... + More

Deduction u/s 80HHB when no separate books in respect of foreign project were maintained - HELD THAT:- As decided in own case [2021 (3) TMI 1230 - ITAT BANGALORE] Tribunal noticed that though separate books of accounts were not maintained separate accounts were maintained in respect of each foreign project and audit certificates in Form No.10CCAH have also been furnished in respect of each project. In these circumstances, we are of the view that the decision rendered by the Tribunal in assessee’s own case for the earlier Assessment Years on identical ground would apply and therefore the assessee cannot be denied the benefit of deduction under section 80HHA of the Act on the ground that separate books of accounts were not maintained for the foreign projects. Nature of expenses - claim of expenses towards entrance and the subscription....... + More

Taxability of income received from re-insurance business in India - whether SRSIPL constitutes a PE of the assessee in India so as to bring the business profit of the assessee to tax in India in terms of India-Switzerland DTAA? - HELD THAT:- The issue, whether SRSIPL can be considered as a PE of the assessee in India has arisen time and again before the Tribunal and the Tribunal has consistently decided in favour of the assessee. In fact, the impugned direction of the learned DRP would reveal that though learned DRP was conscious of the fact that the Tribunal has decided the issue in favour of the assessee in assessment year 2010-11; however, since the revenue has filed an appeal against the decision of the Tribunal, learned DRP decided the issue against the assessee just for the sake of keeping it alive. We decide the issue in favour of ....... + More

Ex parte order of CIT(A) - AO completed assessment in terms of section 144 - Addition u/s 68 - assessee has submitted that there was a change of address whereas the Ld. CIT(A) sent all the notices at the old address and therefore, no compliance could be made before the Learned CIT(A) - HELD THAT:- Looking to the reasonable cause in putting non-appearance before the Ld. CIT(A), we are of the opinion that assessee must be provided one opportunity to explain its affairs. In view of the above facts and circumstances and in the interest of the justice, we set aside the order of the Ld. CIT(A) and restore the matter back to him for deciding afresh. Both the assessee and the Assessing Officer shall be provided adequate opportunity of being heard. In the form No. 36 filed before the Tribunal, the assessee has provided its address as 203, Turab Na....... + More

Disallowance of interest u/s 36(1)(iii) - HELD THAT:- We note that assessee does have its own fund to advance money to the sister concern. However in the interest of Justice we deem it fit to remand to the AO for verifying cash flow statement for relevant period. Assessee is directed to furnish the cash flow statement that would disclose the funds available as on the date of advance to the sister concern. AO shall take a pragmatic approach in accordance with law considering the business exigency in the hands of assessee.Accordingly this ground raised by assessee stands allowed for statistical purposes. Depreciation claimed on the equipments - AO did not allow sum claimed as depreciation against electrical installations and furniture’s and fixtures on the ground that deduction for electrical installation and furniture fixtures alread....... + More

Disallowance u/s. 14A - HELD THAT:- As categorically mentioned by the AO that there is no exempt income and by the assessee during the year. In absence of any exempt income the disallowance u/s.14A of the act cannot be made as has been held by the honorable Delhi High Court income in Cheminvest Ltd 2015 (9) TMI 238 - DELHI HIGH COURT - We direct the AO to delete the disallowance u/s. 14A. Disallowance invoking the provisions of Section 40(a)(ia) - short deduction of tax or non-deduction of tax at source - tax deduction at source is deposited before the due date of filing of the return or not? - HELD THAT:- As given a correct direction if the tax deduction at source is deposited before the due date of filing of the return of income that no disallowance can be made. Otherwise, the disallowance is correctly made. We do not find any infirmity....... + More

Unexplained cash deposits in bank account - HELD THAT:- Firstly, in respect of availability of cash from the retail business, the assessee has shown a figure of ₹ 242,110 whereas the AO has computed an amount of ₹ 179,500/- in respect of which no specific contention has been raised before us and hence, the figure of ₹ 179,500/- as so computed by the AO needs to be considered as against figure of ₹ 242,110/-. In respect of drawings, the assessee has shown a figure of ₹ 119500/-, however, no basis has been specified as to how the assessee has determined the said figure where as the AO has returned a finding that given that assessee has salary and other business income, the household withdrawals can be considered as met out of salary income which has not been disputed by the assessee. Drawings towards household ....... + More

Addition u/s 69 on protective assessment - cash deposit was treated as unexplained investment in the hands of the assessee under the provisions of section 69 and therefore the same was added to the total income of the assessee on protective basis - HELD THAT:- There is no provision under the law for making the assessment on protective basis. It is well settled by the judicial precedent that in the interest of the revenue, the protective assessment can be framed. The circumstances arise for making the protective assessment in a situation where the revenue during the proceedings finds that a particular amount of income can be taxed in the hands of the different persons/assessee and the AO is not sure enough about such person in whose hands the income is chargeable to tax. Where the legal ownership of the income is under suspicion, the AO ca....... + More

Initiation of Section 158BC proceedings - entries made in assessee’s regular books of account could be made - HELD THAT:- We notice in this factual backdrop that the foregoing issue is no more resjudicata. It is not in dispute that the impugned search had also covered the case of assessee’s family/member Shri Kuldip Singh Bagga. This tribunal’s coordinate bench’s earlier order dt.14-10-2011 for the very block period and search had held that the credits in issue cannot be gone into in block assessment proceedings as the same would only form subject matter of regular assessment proceedings. Unexplained cash credit - HELD THAT:- Since the Assessing Officer’s remand report dt.02-05-2018 itself verified that assessee’s credits which are recorded in already maintained books of account which could form subject....... + More

Revision u/s 263 - Framing the assessment u/s. 143(3) - addition on account of RA Bill receipts - HELD THAT:- As perused the observation in the case of CIT vs. Nirma Corporation Ltd. [2008 (2) TMI 373 - GUJARAT HIGH COURT] held that wherein AO adopted one view, merely because commissioner took a different view of matter, it would not be sufficient to permit commissioner to exercise power u/s. 263 unless the view taken by the Assessing Officer is unsustainable in law. As demonstrated from the detailed submission made by the assessee in the form of revised return of income, reply in respect of notice u/s. 142(1) of the act and other correspondence made during the course of assessment proceedings as elaborated above in this order that no tangible material has come in possession of the AO after framing the assessment u/s. 143(3) - On the othe....... + More

Disallowance of depreciation of project assets being road and bridge - Addition on the ground that the assessee is not the owner of the project assets and hence is not eligible for claiming depreciation of such assets - HELD THAT:- As decided in own case [2021 (7) TMI 32 - MADRAS HIGH COURT] assessee is entitled to claim depreciation of public roads, treating the same as building. - Decided against the Revenue.

Deduction u/s 80IA - lease rent income received from letting out modules of Software Technology park to various lessees - whether Tribunal was right in holding that the income derived from letting out of property to the tenants as 'income from business in the hands of the owner of the property? - HELD THAT:- Issue decided in M/S. TIDAL PARK LTD. [2021 (7) TMI 302 - MADRAS HIGH COURT] income derived from letting out of the property with all amenities and facilities would be income from business and cannot be assessed either as income from house property or as income from other sources.

Reopening of assessment u/s 147 - Addition u/s 68 - whether the initiation of 147 proceedings are based on tangible materials or change of opinion? - HELD THAT:- Since the assessee has completely failed to discharge his onus, the trade advances was treated as ingenuine and assessed under Section 68 - The said findings would reveal that though the petitioner has filed the list of persons, failed to furnish the complete details of the trade advances and to proof it is arising out of the purchases made in normal course of business. In view of the said non-disclosure, the Assessing Officer has formed an opinion for reopening of an assessment. The findings of the AO reveals that during the original assessment proceedings, the assessee was asked to furnish the details and confirmations, in respect of the unsecured loans. The assessee, vide writ....... + More

Reopening of assessment u/s 147 - whether the mandatory requirements have been complied with in the present case or not? - HELD THAT:- It is relevant to consider Explanation 1 to Section 147 of the Act, which states that production before the AO of account books or other evidence from which material evidence could due diligence have been discovered by the AO will not necessarily amount to disclosure within the meaning of the foregoing proviso. Even Explanation 2 to Section 147 provides various circumstances under which reopening of assessment shall be done. Where assessment has been made, but income chargeable to tax has been under-assessed, then also re-assessment can be made. There are numerous circumstances, which all are contemplated for the purpose of reopening of assessment and once, the AO has reason to believe that the income char....... + More

Capital gain - assessee had computed the long term capital gains on the sale of house property and claimed exemption under Section 54 - Period of Holding of asset - HELD THAT:- Issue decided against the Revenue and in favour of the assessee in the judgment of Commissioner of Income-tax- 12 Vs. Manjula J. Shah [2011 (10) TMI 406 - BOMBAY HIGH COURT]. Also see MR. VINAY MISHRA [2020 (9) TMI 96 - KARNATAKA HIGH COURT] and M/S. TILOKCHAND AND SONS [2019 (4) TMI 713 - MADRAS HIGH COURT]

Maintainability of petition - sufficient time was not afforded to the petitioner to represent his case - ex-parte order - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. Here is violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case - also the order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Petition disposed off.

Maintainability of petition - sufficient time was not afforded to the petitioner to represent his case - ex-parte order - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. Here is violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case - also the order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Petition disposed off.

Provisional attachment of bank accounts and immovable properties - petitioner has already deposited the amount of deposit for filing the appeal - Section 83 of CGST Act - HELD THAT:- Considering the affidavit-in-reply filed by the respondent to the effect that the petitioner firm is liable to pay the tax with interest and penalty, in aggregate ₹ 1,09,61,102/- and the department has attached the movable and immovable properties to the tune of ₹ 75,48,541/-, which include the attachment of two bank accounts i.e. of Union Bank of India account, having balance amount of ₹ 4,16,050/- and Canara Bank account with balance of ₹ 5,386/- and two other immovable properties worth ₹ 55,37,123/- and ₹ 15,89,982/- respectively, the Court is of the opinion that the interest of the Revenue would still remain substantial....... + More

Grant of Regular Bail - input tax credit - fictitious firms - fake and bogus invoices - section 132 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The Court looking to the seriousness of the offence and lack of change in circumstances, rejected the application of the applicant. In the considered opinion of this court, after the aforementioned orders were passed rejecting the applications, no substantial change in circumstances or any exceptional aspect has been pointed out by the applicant, which would warrant his release on bail under the provision of section 439 of the Cr.P.C. Application dismissed.

GST registration - registration was granted but at a later date i.e., 09.03.2018 - inability to comply with the requirements in terms of the statutes for the period from 01.07.2017 to 09.03.2018 - HELD THAT:- There are merit in the submission that the fresh registration on 09.03.2018 having been obtained by the petitioner in terms of the interim order issued, an opportunity for statutory compliance for the period prior to 09.03.20218 ought to be provided. At the same time, there is substance in the submission made on behalf of the respondents that it is technically impossible to make changes in the GST portal for providing opportunity for an individual assessee to comply with the statutory requirements from a date prior to its registration. The only possible manner in which the issue can be resolved is for the petitioner to pay tax for th....... + More

Classification of supply - supply of services or not - pallets, crates and containers leased by CHEP India Private Limited located and registered in Karnataka to its other GST registration located across India - Valuation for calculation of GST - GST charged on lease charges or the value of equipment in terms of Section 15 of the CGST Act and KGST Act read with relevant Rules - documents that should accompany the movement of goods from CUPL, Karnataka to CIPL, Kerala - movement of equipment from CIPL, Kerala to CIPL, Tamil Nadu on the instruction of CIPL, Karnataka - movement of goods or not. Whether the transfer of assets on lease to his own branches having separate registrations in other States could be termed as “Lease” and accordingly taxable as supply of services? - HELD THAT:- Section 9(1) of the CGST Act, 2017 mandates ....... + More

Cancellation of registration of petitioner - non-payment of interest - delayed filing of returns GSTR-3B - HELD THAT:- There is no dispute that due to non payment of the interest liability for the period from October, 2018 to April, 2020 for delayed filing of returns GSTR-3B, the petitioner is required to make the payment and only thereafter, as submitted by Mr. Keyal, the registration of the petitioner shall be restored by the respondent GST. On the other hand, the submission of Ms. Bhattacharjee that due to striking out of the registration of the petitioner he could not collect the contractual dues from the various organizations against the contractual job also cannot be disbelieved. Let the petitioner approach the concerned authority more specifically the respondent No. 3 along with an application to permit the petitioner to pay the interest liability in installment as a special case keeping in view the pandemic situation arising out of Covid-19 - Petition disposed off.

Classification of goods - HSN code - rate of tax - wastes - Cinder Half-burnt Coal / Char Dolachar - ESP / Bag Filter Dust generated during the process of manufacturing Sponge Iron - levy of GST Compensation Cess @ ₹ 400/- per tonne be applicable on sale of waste. HELD THAT:- The Hon’ble Apex Court of India in the case of UNION OF INDIA VERSUS AHMEDABAD ELECTRICITY CO. LTD. [2003 (10) TMI 47 - SUPREME COURT] held that unburnt or partly burnt pieces of coal have no capacity to produce flame because of low or reduced calorific value and therefore classified such coal/dust as Cinder. Further, Hon’ble CESTAT in the case of CC, CE & ST, HYDERABAD-II VERSUS M/S REACTIVE METALS OF INDIA PVT LTD., & M/S BINJUSARIA SPONGE & POWER PVT LTD. [2017 (9) TMI 1547 - CESTAT HYDERABAD] held that by -Product Char - Dolochar eme....... + More

Levy of GST - time of supply - point of taxation - period involves both pre-GST period as well as post GST regime - flats allotted to land owner by the builder by way of supplementary agreement on 15.05.2017(i.e., before GST regime) - construction will be completed during GST regime - supplementary agreement entered by the developer with a land owner, is allotment letter or not - liability under existing law - exemption under present law. HELD THAT:- From the understanding of the phrase ‘Constructed complex’ it follows that such a complex, building or civil structure should first be in place so that its possession or the rights in it may be transferred by the developer to the person supplying development rights - such transfer of possession or transfer of right in the building shall be accomplished by a conveyance deed or simi....... + More

Seizure of heavy vehicle - Ashok Leyland trucks - e-way bills for these heavy vehicles not present - it was asserted that the goods were being brought within the State by contravening the provisions of Tripura State General Sales Tax Act, 2017 - intent to evade tax - HELD THAT:- Superintendent of Taxes has adopted a procedure which is wholly irregular. In the show cause notice dated 15th May 2021, he had not elaborated the ground that the e-way bills did not carry the reference to the temporary registration numbers duly certified by the State RTO authorities, a ground which he raised in subsequent communication dated 20th May 2021. The petitioner, therefore, did not have opportunity to meet with these grounds. Further, he has raised a demand for unpaid tax with penalty and sought to recover the same from the consignee - This is wholly irr....... + More

Refund claim - petitioner was not heard by the appellate authority before passing the impugned order - email regarding personal hearing was sent to the wrong email address - principles of natural justice - HELD THAT:- The contentions of learned counsel for petitioner is correct inasmuch as the notice was sent to the wrong email address. The appeal is remanded back to the Joint Commissioner, Appeals - I, Central GST, Delhi for a de novo adjudication. The Joint Commissioner, Appeals - I, Central GST, Delhi shall decide the matter in accordance with law by way of a reasoned order after giving an opportunity of hearing to the petitioner - Petition allowed by way of remand.

Search and seizure - Gold Flake Super Star cigarettes - illicit trade/supply - jurisdiction of CGST Delhi North Commissionerate - reasonsto believe - Whether or not, requisite statutory ingredients were present to enable the concerned respondents to exercise the power vested upon them under Section 67(2) of the CGST Act? HELD THAT:- The first proviso to subsection (2) of Section 67 states that wherever it is not practicable to seize any such goods, the proper officer or any officer authorized by him, may serve on the owner or the custodian of the goods, an order that he shall not remove, part with, or otherwise deal with the goods except with the prior permission of such officer - What is crystal clear upon a perusal of the provisions of subsection (1) and (2) of Section 67 is that the expression “reasons to believe” controls ....... + More

Jurisdiction assigned to State Tax Officers in view of the decisions taken by the GST - Circular No. 01/2017 dated 20.09.2017 - constitutional body constituted under Article 279A of the Constitution of India - proceeding/ inquiry initiated by the Respondents against the Petitioner, legal or not - section 6(2)(b) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- This Court is of the view that as the Impugned Summons have been withdrawn and the inquiry proceedings have been closed, the issue sought to be adjudicated upon by the petitioner cannot be decided in a vacuum. Consequently the present writ petition and application are disposed of leaving the aforesaid question of law open to be decided in the event a fresh proceeding is initiated or summons are issued to the petitioner by the Central Tax Officers (GST Officers). The order be uploaded on the website forthwith.

Revenue appeal against the decision of Single member bench of HC - Transition of unavailed input tax credit - non filing of TRAN-1 - section 140 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The input tax credit is required by law to be credited to the electronic credit ledger of an assessee. Failure to credit the input tax credit is an infraction of section 140(1) and to Rule 117(3) of the GST Rules. Input tax credit is an asset in the hands of the dealer. A registered dealer had a statutory right under the VAT regime to get refund. Unutilized input tax credit of the erstwhile regime can be denied from being credited to the electronic credit ledger only under the contingencies mentioned in the proviso to section 140(1) - It is axiomatic that computer literacy has not reached its pinnacle in our country. Technical glitches ....... + More

Transition of unutilised input tax credit - petition is sought to be dismissed on account of non-joinder of necessary/proper parties - Section 140 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The writ petition is disposed off with a direction to the IT Redressal Committee of GST Council to take a call on the petitioner's request for transition input tax credit in accordance with law, after affording an opportunity of hearing, by taking into consideration the provisions of Section 140 of the Central Goods and Service Tax Act, 2017, within a period of forty five (45) days from the date of receipt of a certified copy of the judgment. Writ petition stands disposed of.

Refund of excess paid ITC - refund rejected on the ground that the excess payment of ITC can be re-credit to ITC ledger only by GST PMT-03 as per sub rule (4A) of Rule 86 CGST Rules,2017 as amended vide N/N. 16/2020 dated 23.03.2020 - Ambiguity in the order - HELD THAT:- On examination of reconciliation chart in respect of tax liability of the appellant, generated by appellant through GSTN common portal, as well perused the ledger account of balance sheet with regard to output supply in month of October-2019 it is found that the appellant had made supply only two suppliers on 21.10.2019 and 24.10.2019, wherein GST payable were ₹ 9,093.76 only and same are being reflected in GSTR-1, however, GST were paid through ITC ₹ 2,69,212.54 and same are also being reflected in GSTR-3B. Therefore, in view of the records it is found that t....... + More

Refund of deposited amount - petitioner had deposited 10% of the disputed amount of tax as a pre-condition for filing the appeal - HELD THAT:- The petitioner is ready and willing to deposit an additional 20% of the remaining amount of tax in dispute in compliance of the requirements under Section 112 (8) of UP GST Act. List for hearing in the second week of February, 2020.

Constitutional Validity - Section 9 of the Constitution (One Hundred and First Amendment) Act, 2016 - Serial No. 9(ii), its proviso & para No. 4 of the Explanation in Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 - Entry 10 of the Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017 - levy of Integrated-tax / IGST - services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India - ‘Ocean Freight services - reverse charge mechanism - deeming fiction of equating import of goods & services into India with inter-state trade & commerce - ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 deemed as ‘recipient’ of service - HELD THAT:- Reliance placed in the case of MOHIT MINERALS PVT LTD VERSUS UNION ....... + More

Constitutional Validity - Sr. No. 9(ii) of the N/N. 8/2017-Integrated Tax (Rate) dated 28.06.2017 - Sr. No. 10 of the Notification No. 10/2017 - Integrated Tax (Rate) dated 28.06.2017 - levy of Integrated-tax / IGST - services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India - ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 deemed as ‘recipient’ of service - HELD THAT:- Reliance placed in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] where it was held that impugned Notification No.8/2017 - Integrated Tax (Rate) dated 28th June 2017 and the Entry 10 of the N/N.10/2017 - Integrated Tax (Rate) dated 28th June 2017 are declared as ultra vires the Integrated Goods and Serv....... + More

Levy of GST - Composition scheme - the turn over after the GST regime came to force is less than ₹ 1 crore - whether the authorities were right in directing the petitioner to pay tax at 28% and also as to what the word “preceding financial year” appearing in Section 10(1) of Act would mean? - HELD THAT:- The word ‘preceding financial year’ appearing in Section 10 (1) of the Act is the crux of the issue. If the word ‘preceding financial year’ is restricted to the period commencing from GST regime, then all the assesses, who have submitted their returns with false declarations in the GST regime for the financial year 2017-2018, would go scot free and would not be liable to pay any tax, as there would not be any preceding financial year in the GST regime for the period 2017-2018. This could not have ....... + More

Valuation of imported goods - rejection of declared value - purchase of urea by the Appellant from the Government of India on High Sea Sale - inclusion of miscellaneous charges of ₹ 17/- per MT paid by the Government of India to STE, in assessable value - inclusion of notional 2% High Sea Sale Commission in assessable value - invocation of extended period of limitation - confiscation - penalty. HELD THAT:- The order of the Custom, Excise and Service Tax Appellate Tribunal in M/S. INDIAN FARMERS FERTILIZERS CO-OPERATIVE LIMITED (IFFCO) VERSUS PRINCIPAL COMMISSIONER OF CUSTOMS, JAMNAGAR [2020 (2) TMI 1134 - CESTAT AHMEDABAD] is upheld - it was held in the case that 2% Notional High Sea Sale Commission could not have been added to the assessable value - neither the amount of ₹ 17/- per MT paid by the Government of India to the ST....... + More

Grant of fresh CHA License - HELD THAT:- This appeal is disposed off with liberty to the appellant to make a fresh application for grant of CHA License, which be considered by the Competent Authority in accordance with law. In the event, the application for grant of fresh CHA License is rejected, it will be open to the appellant to take recourse to statutory remedy of appeal provided for in Regulation 9(4) of the Custom House Agent Licensing Regulations, 2004.

Seeking registration of scrips - benefit under Merchandise Exports from India Scheme (MEIS) - invocation of procedure for cancellation of scrips as set out u/s 9(4) of Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- Upon a comparison of the details contained in the bills of export of goods under which the petitioner has claimed duty drawback, with the bills of the parties to the transaction, it is found that the numbers and date tally. It is thus clear that the export documents have been executed by the petitioner. The petitioner also confirms that the FTWZ has neither claimed nor been granted any benefit under MEIS Scheme in regard to the instant transactions. If at all such claims had been advanced, they would have been barred under the provisions of 3.06 (vii) of the policy note. The procedure set out for issuance of....... + More

Refund of excess amount of tax - import of RBD Palm Oil - enhancement of rate of customs duty vide N/N. 29/2018-Cus., dated 1-3-2018 - validity of the notification - date on which notification came into effect, and the effect of notification on impugned bills of entry - HELD THAT:- The Notification No. 29/2018-Customs, dated 1-3-2018 came into effect from the date of its publication in the official website of the respondent as per the Office Memorandum - there is no dispute that the Notification was uploaded in the official website on 6-3-2018. Therefore, the rate of duty, as was in existence prior to the said publication of the Notification No. 29/2018-Customs, dated 1-3-2018 in Notification No. 50/2017-Customs, dated 30-6-2017, was applicable for assessment of the Bill of Entry No. 5409602, dated 1-3-2018. The respondents will have to p....... + More

Grant of anticipatory bail - Smuggling - Gold - offence under Section 135(1)(b) of the Customs Act - bailable offence - Power of Customs Officer to arrest a person - HELD THAT:- The applicant apprehends that he may be arraigned as an accused in OR No. 7/2020 of Ernakulam Customs in which his son-in-law has been implicated as an accused. Going by the allegations, he apprehends that he may be implicated for an offence punishable under Section 135(1)(b), which is only a bailable offence coming within the purview of Section 104(7) of the Customs Act. In case that argument is accepted, application for anticipatory bail under Section 438 of Cr. P.C. is not sustainable. In UNION OF INDIA VERSUS PADAM NARAIN AGGARWAL ETC. [2008 (10) TMI 1 - SUPREME COURT] it was held that the power to arrest a person by a Customs Officer is statutory and cannot b....... + More

Classification of imported goods - aircraft engine along with engine stand as parts of aircraft - goods imported into the country or shifted from Delhi to Bangalore? - to be classified under CTH 8803 30 00 or would be CTH 8411 12 00 for Aircraft Engine and CTH 7326 19 90 for Engine Stand - applicability of Sl. No. 346D of Notification No. 21/2002-Cus., dated 01.03.2002 / Sl. No. 454 of Notification No. 12/2012-Cus., dated 17.03.2012 or otherwise? - sustenance of demand without reviewing/challenging the assessment in the Bills of Entry - extended period of limitation - penalties - interest - confiscation of goods. Whether the goods are to be treated as imported into the country or shifted from Delhi to Bangalore as claimed by the appellants?. If so, whether they are eligible for the benefit of notification no. 94/96- Cus dated 16.12.1996? ....... + More

Refund of Container Detention Charges - violation of the Detention / Demurrage Waiver Certificate dated 27.10.2017 - unflavoured supari - despite the Detention Certificate, no action has been taken by the 4th respondent / Service Provider - HELD THAT:- Once the imported goods are confiscated by the Customs authorities, they became in possession of the goods and therefore, the Service Provider shall not levy any charges for the said confiscated goods. If at all any deposits are collected in this regard, the said deposits are to be refunded - In the present case, even the goods are not released and the Service Provider is claiming charges, which is in violation of the Detention certificate issued by the Customs authorities. Thus, the petitioner is constrained to move the writ petition. In the present case, admittedly, the goods are being ma....... + More

Review petition - Rectification of error in the Judgement of the Court - Verification in respect of the Bill of Entry - Verification of country of origin - respondent filed their objection against the review petition and stated that there is nothing to be reviewed except a bonafide mistake that has crept in the order dated 26.04.2021 which is merely a bonafide typographical error - Rule 6(1)(b) of the CAROTAR, 2020 - HELD THAT:- Since the errors in the judgment dated 26.04.2021 are apparent on the face of records. The line “the petitioner may take release of the imported goods covered by Bill of Entry No.659,629/IMP/AGT-LCS/2020-21 dated 29.09.2020 without prejudice to his claim” be deleted and substituted by the following sentence : “The petitioner may take release of the imported goods covered by Bills of Entry No.9592....... + More

Seeking immediate release the goods without charging any demurrage or rent charges - auction of seized goods ordered, despite deposit of duty and detention certificate for waiver of rent/demurrage charges - HELD THAT:- The matter requires consideration. Issue notice to respondent no. 3, returnable with five weeks. Steps may be taken within a week. All the respondent may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within one week thereafter. List thereafter.

Seeking refund of dual payment made - applicability of Section 19 of the Lighthouse Act, 1927 - allegation is that the expression used in the said section is, “excess payment” and, not “dual payment” - HELD THAT:- There are no merits in the writ appeal warranting interference, for the reasons that the writ court has considered the statutory provisions, and has rightly come to the conclusion that Section 19 of the Lighthouse Act, 1927 cannot be made applicable to the case on hand, as the expression used in the said section is, “excess payment” and, not “dual payment”, made by the petitioner, on account of a technical flaw, in the web portal, in not accepting the online payment and thus, the writ petitioner was constrained to make a manual payment of ₹ 6,33,144/-. Now that, the amount is....... + More

Renewal of CHA License - appellant's CHA licence has already expired on 13.04.2020, appellant was directed to apply fresh for certificate - Section 130 of the Customs Act, 1962 - HELD THAT:- The simple affect of the adjudication of CESTAT is that the orders of respondent, either placing the appellant under suspension or denying renewal or confirming the decisions taken, are all set aside. There is nothing against the appellant as on date warranting the appellant to apply afresh for CHA licence. The directions are inconsistent with final orders of the CESTAT. The appellant, therefore, is entitled for consideration of application made in Annexure-B for renewal - appellant, therefore, is entitled for consideration of application made in Annexure-B for renewal. Appeal allowed.

Freezing of petitioner's Bank Account - extension of time for further six months from the date of expiry of the period prescribed - seeking extension for issuance of final show cause notices by the Jurisdictional Commissionerate, by four weeks - HELD THAT:- As the investigation was completed within time i.e. on June 24, 2021, as directed by this Court, the revenue had complied with the order dated February 24, 2021 passed by this Court, hence, there was no impediment for the revenue to issue the show cause notices. The Interim Applications are disposed of.

100% EOU - sale in DTA at concessional rate of duty - benefit of N/N. 2/95 - benefit of physical export applicable to deemed export or not - HELD THAT:- With reference to the Exim Policy, as well as circulars issued by the Ministry of Commerce and Ministry of Finance and the business transactions, as well as the nature of benefits claimed, involves an adjudication of technical points. Such technical points with reference to the business transactions cannot be adjudicated in a writ proceedings under Article 226 of the Constitution of India. It requires examination of certain records as well as the policy decisions, which all are prevailing during the relevant point of time, more specifically, for the purpose of extending the benefits. Thus, it would be preferable, such issues are decided by the 5th respondent, Commissioner of Central Excis....... + More

Confiscation of imported goods - Hand Mixer and its spare parts - import objected to by the Customs on the ground that the goods imported were not ‘Hand Mixer’ but were ‘Hand Held Blenders’ - section 125 of the Customs Act, 1962 - penalty u/s 112(a) of the Act - HELD THAT:- The judgment does not warrant any interference. Appellant has only been relegated to the statutory remedy of appeal. No prejudice is caused on account of the said relegation. No circumstance exist for this Court to interfere in the extraordinary jurisdiction under Article 226 - The apprehension of the learned counsel for the appellant that the Appellate Tribunal has not started its sittings after the lock-down, have been countered by the learned Standing Counsel, who pointed out that the Tribunal has in fact started its sitting and are hearing m....... + More

Failure to file EGM - responsibility of the appellant to file the EGM to the proper officer before departure of the conveyance from the Customs station - violation of Section 41 of the Customs Act, 1962 - penalty under Section 117 of the Act - HELD THAT:- The appellant is not master of the vessel but only vessel operator / shipping line who has filed the EGM on behalf of the master of the vessel. As per Rule 96 of the CGST Rules, 2017, the shipping bill filed by an exporter shall be deemed to be an application for refund of integrated tax paid on the goods exported, out of India, once both EGM and valid return in Form GSTR-3/GSTRB are furnished by the applicant. The IGST Refund module for exports has an inbuilt procedure to automatically grant refund after validating the Shipping Bill date against the GST Returns. The common errors and co....... + More

Maintainability of petition - petitioner states that the representation made by the petitioner on 3.7.2020 to the Commissioner of Customs, Mundra i.e. respondent No.1 has remained undecided, though the same was received by the office of the respondent No.1 on 6.7.2020 - HELD THAT:- Without going into the merits of the case, it is directed that the respondent No.1 shall decide the representation of the petitioner dated 3.7.2020 (Annexure-J) received by the office of the respondent No.1 on 6.7.2020, in accordance with law and as expeditiously as possible, preferably within four weeks from the date of receipt of this order. It is clarified that the Court has not gone into the merits of the case. Petition dismissed.

Conditions of achieving of positive Net Foreign Exchange (NFE) as prescribed in the Special Economic Zone Rules, 2006 - failure to carry out operations as per the requirement of law as prescribed - non-fulfilment of obligation on the export turnover and of the NFE as promised - furnishing of APR’s giving incorrect information - case of the petitioner necessarily is that the entire block period of 5 years ought to have lapsed and only then a show cause notice should have been issued for the entire period, for non-fulfilling the NFE conditionsof the petitioner necessarily is that the entire block period of 5 years ought to have lapsed and only then a show cause notice should have been issued for the entire period, for non-fulfilling the NFE conditions. HELD THAT:- ‘Annexure-I’ prescribes that a show cause notice can be iss....... + More

Maintainability of appeal u/s 129(A) of the Customs Act, 1962 - Provisional release of imported goods - Section 110 A of the Customs Act,1962 - HELD THAT:- The appellants have been cooperating with the investigation and have deposited substantial sums during the investigation only before the passing of any formal adjudicating order confirming the duty. Under the circumstances, it is found that the appellant has established his bona fides. The appellants have requested to set aside the conditions of provisional release. The ends of Justice would be met if the amount of Bank Guarantee to be given is modified suitably, while keeping the condition of Bond as it is - Bank amount for submission of Guarantee is fixed at ₹ 5,00,000 in place of ₹ 30,00,000 and the amount of ₹ 65,79,899/ fixed for Bond remains unaltered - appeal allowed in part.

Levy of penalty u/s 117 of CA - non-filing of EGM/shipping bills as required under section 41 of the Customs Act, 1962 - problem of EGM errors which hamper IGST refund processing - HELD THAT:- Section 41 thus cast duty upon the person in-charge of conveyance/carrier to file the EGM in relation to the goods which are exported. In case of any omission or error in filing documents, the law provides for opportunity to correct the same. It has to be seen that the proper officer of the Customs has to first verify whether the goods have reached the port. So also, the proper officer has to verify whether the documents regarding the export have been filed including the shipping bills. Only after such verification, the let export order or out of charge is issued. If LEO was issued without EGM being filed, it would imply that the proper officer has ....... + More

Levy of late fee charges - delay in filing the bill of entry - sufficient reason for delay in filing the bill of entry was shown or not - HELD THAT:- From the records, it is clear that the original importer could not clear the consignment and had to sell the goods to another person. Since necessary amendments have to be made in the shipping bill which has to be filed along with necessary documents by the new purchaser, the bill of entry could be filed only on 14.11.2018. This being the facts which have been properly established by document itself, the view taken by the authorities below that the reasons are not genuine / bonafide cannot sustain. Tribunal in various decisions have analyzed similar facts and have held that the late fee imposed are not warranted - reliance placed in the case of M/S. BLUELEAF TRADING COMPANY VERSUS THE COMMIS....... + More

Recall of order - applicant was not impleaded as a party to the writ petition, for which the points raised in the recall application could not be properly represented before the court - re-activation of the Directors Identification Number (DIN) - HELD THAT:- In the present case, the challenge in the writ petition was that the DIN of the writ petitioner could not be deactivated since the writ petitioner had complied with the requirements to be complied with by the directors by filing annual reports and financial statements of the concerned financial years. However, it is specifically admitted in paragraph no. 18 of the writ petition that the petitioner is taking appropriate steps in respect of the marking of the respondent no. 4, that is, the Tirupathi Properties & Investment Private Limited as having management dispute. Thus, the mark....... + More

Seeking approval of Tribunal for sanction of scheme of Amalgamation - section 230-232 of the Companies Act, 2013, read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- On going through the approvals accorded by the members and creditors of the Petitioner Companies to the Scheme and the affidavits filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs, the rejoinders filed by the Petitioner Companies to the observation of the Regional Director and the rejoinder thereto, there appears to be no impediment in sanctioning the present Scheme. The Petitioners shall abide by the undertakings given in their affidavits. Since all the requisite statutory compliances have been fulfilled, the scheme is approved - application allowed.

Sanction of the Composite Scheme of Arrangement - Section 230(6) read with Section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of various notices also issued. The Petitioner(s) shall supply legible print out of the scheme and schedule of assets in acceptable form to the registry and the registry will append such printout, upon verification to the certified copy of the order - petition disposed off.

Approval of Scheme of Amalgamation - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - directions sought for dispensing with the meeting of equity shareholders of the Applicant Companies, Secured Creditors of Applicant No. 1 and Unsecured Creditors of Applicant No. 1 to Applicant No. 4 and Applicant No. 6 who have already given their consent to the Scheme - HELD THAT:- Various directions regarding dispensation of meetings issued - directions regarding issuance of various notices also issued. The application disposed off.

Seeking restoration of name of the Company in the Register of Companies maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Company is doing its business as a going concern basis - Applicant further stated that the Company would file necessary Financial Statements and Annual Returns soon after restoration of the name of the Company with the Registrar of Companies, Hyderabad and prayed the Tribunal to revive this Company. After hearing the Learned Counsel for Applicant and after perusal of material documents on record, the report of the RoC, Hyderabad and after going through the provisions of Section 252(3) of the Companies Act, 2013, this Tribunal is of the view that the Company was in existence and it is a going concern and name of the Company to be restored in the Register of Companies ....... + More

Sanction of the Scheme of Amalgamation and Arrangement - Section 232(3) of the Companies Act, 2013 - HELD THAT:- It is ordered that even after the sanction of the scheme, the Admobile Private Limited will be liable for all liabilities as per the letter of Income Tax Department relating to Admobile Private Limited, as it is a demerged company and it is not getting dissolved. The scheme is approved with various orders issued - the scheme is approved - application allowed.

Sanction of the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 - HELD THAT:- The scheme is approved alongwith various directions with regard to sanction of scheme also issued. Application allowed.

Approval of Scheme of Amalgamation - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of various notices also issued. The scheme is approved - application allowed.

Prayer to be transposed as the Respondent in Company Petition - HELD THAT:- This Application is not filed with any bona-fide purpose. It is filed almost 2 years from the date on which the Petitioner No. 3 decided to withdraw himself as one of the Petitioners. In this case, the remaining Petitioners completed their arguments in main petition and when we called upon Respondent No. 2 to make his submissions, this application came to be filed by Petitioner No. 3. It appears to us that. Petitioner No. 3 has filed this Application only to delay the hearing of the main petition. It is seen from the record that Petitioner No. 3 has consented to join as the petitioner. He had signed vakalatnama of Mr. S. Subha Reddy. Later on, he withdrew the same. It is alright if he does not wish to continue as the Petitioner but he cannot be added as Respondent....... + More

Restoration of name of Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- Section 252(3) of the Companies Act, 2013 confers on this Tribunal powers to Order to restore the name of the Company in the Register maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company within 20-years from the date of publication of the notices under Section 248(5) in Official Gazette about striking off name of such Company provided further that it is seen from the material on record that at the time its name being struck off, the Company was doing its business or carrying its operations. The Company had not generated any revenue from its operations during the financial years 2010-11 to 2013-14 and 2016-17 to 2017-18, and in all t....... + More

Scheme of Arrangement - seeking to dispense with the meetings of the Equity Shareholders and Unsecured Creditors of all the Applicant Companies and Secured Creditors of Transferee Company - Sections 230 to 232 Read with Section 66 of the Companies Act, 2013 and Rule 3(2) of the Companies (CAA) Rules, 2016 - HELD THAT:- The Companies have followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditors/Chartered Accountants of the Companies have also issued respective Certificates by inter-alia certifying the details of shareholders, creditors, and compliance of accounting treatment as prescribed U/s 133 of the Companies Act, 2013 with reference to the Scheme in question. The Applicant Companies have disclosed all the material ....... + More

Liquidation of the Company/Corporate Debtor - no viable resolution plan was provided to CoC - Section 33(1)(a) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved with 100% voting share in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(1)(a) of the Code. Therefore, it has no option than to pass an order for liquidation of the Company in the manner laid down in Chapter III of the Code. The Corporate Debtor i.e. M/s. ISR Infra Private Limited shall be liquidated in the manner as laid down in Chapter-III of the Code - Application allowed.

Auction and sale of immovable/scheduled property - Rejection of bid of applicant - seeking stay on the process of issuance of fresh public notice for auction of the scheduled properties - direction to respondent to file an appropriate report before this Hon'ble Court for the confirmation of sale of the scheduled properties in favour of the applicant herein - HELD THAT:- The bid of the applicant was not accepted and the stage of negotiating with him did not arise to validly make the complaint that approval of the Court was necessary, could not be brushed aside lightly. Even if the said aspect is left aside, the scenario offered was that there was only one bid from the applicant. The comparative price was not available except quoted by the applicant. Respondent No.1 appears to have been guided by the said factum and only one offer havin....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - breach of payment terms by the corporate Debtor under the Settlement Agreement - HELD THAT:- It is an undisputed fact that the parties had executed the Settlement Agreement and the Corporate Debtor was obligated to strict adherence of terms and conditions of payment which he obliterated and committed default of payment terms. Post admission of CIRP against the Corporate Debtor on 14.02.2019, the parties executed the Settlement Agreement dated 28.02.2019 and the Corporate Debtor filed the same before the Hon’ble NCLAT. The Corporate Debtor has committed default of payment terms and cheques for the month of April and May were dishonored. The corporate Debtor vide let....... + More

Condonation of delay in filing petition for third time - Extension of period of limitation - the scheme of amalgamation was approved way back but was not implemented yet - Hon’ble Supreme Court extended the period of Limitation, whether condonable or not, with effect from 15.03.2020 which is continuing till the date of filing of the Appeal - first Appellant was infected with Covid and was admitted in the hospital from 01.09.2020 to 20.09.2020 - HELD THAT:- In the instant case, the Appellants are silent about the receipt of free copy. Be that as it may, they chose to apply for a certified copy only on 08.08.2020 and received it on 12.08.2020 and filed this Appeal on 06.11.2020 after 86 days. The ground that the MD was not available for 20 days as he was infected with Covid, though we consider genuine, does not prevent a Company compr....... + More

Liquidation order - purchase of Lot No.4 being a property, which had no interested buyers - inspite of issuance of various advertisements, with regard to sale of property, no interested buyers came forward to purchase the property - HELD THAT:- This Court is satisfied that there is no factual impediment in allowing the prayers of the applicants for purchasing Lot No. 4 of the land in question. ₹ 50 Lakh has admittedly been deposited by the applicants with the Official Liquidator as 20% of the total consideration money in terms of the offer letter. It is also admitted that there is no other buyer for the said plot of land as would be evident by the order dated 14th June, 2019. No other offers have since been received by the Official Liquidator. There is admittedly no such transfer application which is pending before this Court. There....... + More

Approval of scheme of Amalgamation - seeking dispensation of meeting of Equity Shareholders, secured creditors and unsecured creditors of all the applicant companies - seeking direction for holding and convening the meetings of unsecured creditors of applicant companies - HELD THAT:- The meetings of the Shareholders of all the applicant companies as well as meetings of Secured Creditors of Applicant Company No. 2 and Applicant Company No. 4 and the meeting of Unsecured Creditors of Applicant Company No. 3 are hereby dispensed with. Since there are no Secured Creditors and Unsecured Creditors in Applicant Company No. 1 and no Secured Creditor in Applicant Company 3, question for convening of meetings of Secured Creditors and Unsecured Creditors in Applicant Company 1 and meeting of Secured Creditor in Applicant Company 3 does not arise at all. The present application complies all the requisite criteria of section 230-232 of the companies Act, 2013 - the present application is allowed.

Approval of scheme of arrangement - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- The Regional Director has filed a Supplementary Report dated 16th December, 2020 with this Tribunal, accepting the response of the Petitioner Companies as satisfactory. The Transferee Company shall ensure compliance of Section 186(7) of the Companies Act 2013. The Petitioner Companies also undertake to comply with all the statutory requirements if any, as required under the Companies Act, 2013 and the Rules made thereunder, whichever is applicable. Accordingly, the clarifications and undertakings given by the Petitioner Companies are hereby accepted. The Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. Since all the requisite statutory c....... + More

Winding of respondent company - Section 271 (c), (d) and 272(3) of the Companies Act, 2013 - HELD THAT:- The affairs of the company have been conducted in a fraudulent manner, the persons concerned in the formation or management of its affairs have been found guilty of fraud, misfeasance or misconduct in connection therewith and that the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years Hence it is found proper that the Company be wound up in the interest of justice and as prayed for by the Petitioner. The order is hereby passed for winding up of the Company, Bhasank Foods Pvt. Ltd., under the provisions of Section 271 (c) and (d) of the Companies Act, 2013 - Petition disposed off.

Oppression and mismanagement - stay on subscription of rights issue - Whether right issue could be cancelled on the ground of breach of fiduciary duty and relationship between directors? - balance of convenience - HELD THAT:- It is a settled law from judicial precedents that while considering interim relief, the Tribunal has to look into the aspect of balance of convenience between the parties. The interim relief is discretionary and the Court is also required to consider whether Petitioner/Applicant has established "prima facie" case and it is not frivolous or vexatious - The Company is a private limited company and is in practice of obtaining loans from friends, social circles and relatives. The genuineness of loans is not disputed by any party. Under Section 241 and 242 being an Equity Jurisdiction, the interests of the Compa....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt or not - disbursement of loan and its non-payment is proved by the documents placed on record - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Since the disbursement of the loan is proved vide Bank's statement of the Financial Creditor for the period 18/04/2016 to 29/03/2019, issued by the Bank of Maharashtra showing the disbursement of loan to the Corporate Debtor and the amount outstanding has been admitted by the Corporate Debtor vide its confirmation letter duly signed and sealed mentioned above, and since the admitted default of non payment of the outstanding amount is proved on the basis of documents placed on record by the Financial Creditor including various notices and reminders recalling the o....... + More

Seeking direction upon the RP to reconsider and reverify the claim submitted by the applicant, before approval of the Resolution Plan - Collation of claim by RP - HELD THAT:- This is a case where the RP himself was aware from the records that there was only one time supply of materials by the applicant and the monthly charge was towards the hiring cost of those materials. It is also admitted by the RP that the materials are still lying at the project site and have not been returned so far to the applicants - In this scenario, while the RP could not properly have paid the tax on the supply of goods without a proper tax invoice, there was nothing that prevented him from factoring in the basic rent in respect of the materials which are already technically under the corporate debtor's custody but physically lying within the Metro Railway ....... + More

Liquidation process - demand of tax dues - requirement to pay the tax dues prior to the date of sale of the unit - eligibility to issue enlistment certificate - applicability of municipality by section 118 of the West Bengal Municipal Act and Audit and Accounts Rules, 1999 - requirement ot follow duties under section 55 of the Transfer of Property Act, 1882 - overriding effect of IBC or not - HELD THAT:- The Insolvency and Bankruptcy Code, 2016 is a self contained legislation. In cases of liquidation, through chapter III read with the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, the Code provides for a procedure of public announcement calling upon the stakeholders to submit their claims with the liquidator, who then consolidates, verifies and adjudicates upon it - In the present case, the liquidator ha....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - account of the corporate debtor was classified as NPA - valid power of attorney or not - time limitation - HELD THAT:- This case was adjourned from time to time on the ground that the issue of whether entries made in balance sheets amount to an acknowledgement of debt under section 18 of the Limitation Act, 1963 was pending before the Hon'ble Supreme Court. Valid power of attorney or not - HELD THAT:- The plea regarding no valid power of attorney is not valid, On perusal as per clauses no. 10, 11 and 12 of the power of attorney mentioned that the applicant is authorized to initiate and prosecute insolvency proceedings by and on behalf of the bank. From the date of au....... + More

Seeking declaration that respondent are entitled to claim any outstanding amount from the Applicant in respect of any due or amount payable - 'statutory charge' created in favour of the Respondents - effect of amendment to Section 32A of the IB Code, 2016, retrospective or not - HELD THAT:- The Hon'ble Supreme Court in GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS. [2021 (4) TMI 613 - SUPREME COURT] by clarifying the statutory amendment to Section 32A of the IB Code, 2016 has held that such amendment it clarificatory in nature and it ought to be given retrospective effect. Which means that such provision is made applicable from the date the Insolvency and Bankruptcy Code came in to effect, i.e. 1st December 2016. ....... + More

Liquidation process - J.M. Financial Asset Reconstruction Company Ltd. has been asserting rights on the basis of being part of Committee of Creditors and Financial Creditor of the Corporate Debtor - HELD THAT:- Application by the Adjudicating Authority, the same was dismissed as infructuous and period of CIRP was extended. In 9th CoC Meeting dated 10.09.2018, as plans received were not viable CoC again decided to file for Liquidation and I.A. No. 376 of 2018 was filed by Resolution Professional on 25th September, 2018. Company Appeal (AT) (Ins.) No. 1219 of 2019 read with Company Appeal (AT) (Ins.) No. 1327 of 2019 Direction of refund of money to Dr. Tandon and others - Order/direction as may be issued by Competent Court in pending litigation - it is claimed that when the Adjudicating Authority accepted that Dr. Tandon and others were not....... + More

Dissolution of the Corporate Person - voluntary liquidation - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- On the Petition filed by the Liquidator under sub-section 7 of Section 59 of the Code for dissolution of this Corporate Person, it is noticed that the affairs of the Corporate Person have been completely wound up and its assets are liquidated. This Corporate Person, through its Liquidator, voluntarily liquidated itself so as to get dissolved, therefore, this Corporate Person is dissolved directing the Liquidator to file this order with concerned Registrar of Companies and IBBI within 14 days thereof. This Company Petition is allowed.

Amount paid to the Interim Resolution Professional towards the CIRP Costs and the Fees - Appellant and the Corporate Debtor have already settled the dispute - Appellant and the Original Petitioner agreed that the Appellant will bear the CIRP Costs and the Fees of the IRP of the Corporate Debtor - HELD THAT:- When the Original Petitioner has admittedly already entered into settlement, it is inappropriate for the learned counsel for the Original Petitioner - Operational Creditor to now turn around and create doubts with regard to the amounts paid to the Resolution Professional. The Learned Counsel for the Original Petitioner is submitting that the Application was filed in capacity of Liquidator and as it is Liquidator it is answerable to stakeholders. When willful execution of the settlement agreement dated 19th July, 2021 is not questioned....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- It is not in dispute that the demand notice was sent through speed post to the address of the respondent-corporate debtor as mentioned in its master data and when the same was offered to deliver at the said address and when the same was unclaimed, it should be treated as a valid and proper delivery of the demand notice, as per the settled principles of law. Hence, this issue is decided in favour of the petitioner. Whether the petitioner has proved the existence of an enforceable debt and the liability to pay the same by the corporate debtor? - HELD THAT:- It is not in dispute that the respondent-corporate debtor vide Annexure 5 wa....... + More

Seeking to consider the resolution plan - seeking to set aside the impugned Form-G dated 21.02.2021 and for issuance of a fresh Form-G again - HELD THAT:- It is not in dispute that the object of the Code is maximization of the value of the assets of the corporate debtor. Hence, no prospective resolution applicant can object if the COC in its commercial wisdom rejects a particular resolution plan and in deciding to issue a fresh Form-G. The applicant though got an opportunity to submit a fresh resolution plan, and has chosen not to submit the same but on the other hand, filed the instant application. It is to be seen that the resolution of the respondent-corporate debtor has already been delayed for substantial period due to various reasons including different long spells of lockdowns due to Pandemic Covid-19. It is not in the interest of ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors or not - existence of debt and dispute or not - time limitation - HELD THAT:- It is evident from the Part 2 of Form 1 which has been filed by Financial Creditor that no date of default has been mentioned in the Form 1. Hence, on perusal of the application filed under section 7 of IBC, 2016, the date of default can be ascertained as 22.12.2014, the date on which the Corporate Debtor sent a mail to the financial Creditor accepting that the said project has been delayed and acknowledged the liability. Whereas, the financial Creditor has filed the present application under section 7 of IBC, 2016 on 21.11.2019. The Present application filed under section 7 of the IBC, Code, 2016 fails the test of Limitation as far a....... + More

Appointment of Resolution Professional - Section 22 of the I&B Code - HELD THAT:- So far statutory provision as contained in Section 22 of the I&B Code which contemplates appointment of Resolution Professional and further replacement is concerned, this power can only be used when the ingredients of Section 22 is met - so far as the provision of Section 27 of ‘IB Code’ is concerned it contemplates with the Replacement of Resolution Professional by CoC. This power can only be used when the ingredients of Section is met. In the facts of this case neither the ingredients of Section 22 & 27 of the Insolvency & Bankruptcy Code, 2016 is made out - Learned Adjudicating Authority is conscious of the fact that the Appellant herein could not provide leadership to CIRP proceedings and further there was clash between the Se....... + More

Interest on delayed payment of sale consideration - delay on the part of the Respondent to pay balance sale consideration or not - refund of excess interest paid, due to the delay, for which respondent id responsible - can the burden of interest be fastened on the Respondent / Successful Bidder - process of sub-division of the land was restricted to the leasehold land and not to the other freehold land - HELD THAT:- The delay in payment of balance sale consideration in respect of leasehold land cannot be attributed to the Respondent. However, the Respondent is responsible in respect of delay in payment of balance sale consideration in respect of freehold land. Accordingly, the Appellant is directed to refund the excess interest deducted by him to the Respondent to the extent of leasehold land. The impugned order is set aside - appeal disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - account was classified as NPA - time limitation - HELD THAT:- Although the NPA was declared in respect of Corporate Debtor in 2012, but the Corporate Debtor kept on acknowledging its Debt in its correspondence letters with the Bank and also the Respondent had made part payment of ₹ 10,00,000/- towards loan liability in the year 2017 while the present IB petition is filed in 2018. Hence it is found to be filed well within limitation. Since the Respondent did not file its Reply/objection to the present IB petition, it goes uncontested. Hence the Debts which are more than Rs. One Lakh stands admitted and the default in making repayment of loan goes undisputed. Therefore the present IB petition is found to ....... + More

Validity of admission of application u/s 7 of IBC - entire loan transaction is based on the 'Term Loan Agreement' - inadequately stamped document - admissible in evidence or not - debt and default have been proved beyond doubt - HELD THAT:- Based on the documents filed by the Financial Creditor, it is clear that the Financial Creditor has proved that the Corporate Debtor has defaulted in making the payment is 6,39,13,042 due on the Corporate Debtor. Therefore, if it is considered that the Term Loan Agreement is insufficiently stamped for argument sake, then it is inadmissible in evidence. Furthermore, the claim of the Financial Creditor is fully corroborated by other evidence filed - Corporate Debtor committed default in repayment of the loan amount to the Financial Creditor. Hence its loan account was declared as NPA. In light of....... + More

Liquidation process - duty of liquidator to determine claim as submitted in Form G by “Other Stakeholder” - counter claim being made by the Corporate Debtor was rejected - HELD THAT:- As per Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, the Liquidator was required to process the claims submitted in Form ‘G’ by the Appellant as claim by “Other Stakeholder”. Regulation 20 provides for processing of claims by other stakeholders and the Appellant was required to prove its claim inter alia on the basis of relevant documents which adequately establish the claim. Under Regulation 23, the Liquidator has power and duty to call for such other evidence or clarification as he deems fit from a claimant for substantiating the whole or part of its claim - Regulation 28 even makes pr....... + More

Rejection of restructuring plan - Restructuring of debt - rejection due to delay in issuance of tariff plan - outstanding dues on supply of generated power to the WBSEDCL - identification of Stressed Assets - Case of petitioner is that cancellation of the restructuring plan was never communicated formally to the petitioner - formal recall notice of the loans and advances was never issued by the respondent - HELD THAT:- Merely because an instrumentality of State is engaged in business it cannot be put to any more disadvantage than a private player. The State cannot also be required to grant concessions outside the contract and outside what a private player would ordinarily be required to give. Under the garb of requiring fairness in action even State business entities cannot be imposed with terms & conditions for non-commercial conside....... + More

CIRP process - financial creditor or operational creditor - inclusion/exclusion of appellant form CoC - Initially was treated as Financial Creditor but later on was treated as Operational Creditor - grievance of the Appellant is that the Appellant had been excluded from CoC on that day and was not allowed to participate - HELD THAT:- In the present matter, the Appellant was earlier treated as Financial Creditor for the dues claimed by Appellant but later on the Appellant has been treated as Operational Creditor. Order dated 25.11.2019 of the Adjudicating Authority directed the Resolution Professional to consider if debt of Appellant is a Financial Debt and place it before CoC. He did this in 6th CoC Meeting. On the face of it the Lease Deed does not appear to be Financial Lease. As the Resolution Plan is stated to be already approved, whe....... + More

Operational Creditor or Financial Creditor - Seeking to declare applicant/GNIDA as Operational Creditor in the 6th CoC - seeking for issue of necessary directions for upholding and continuing the already declared position/status of the applicant/GNIDA as 'Financial Creditor' as per the earlier decision taken in the 4th meeting of CoC on 21.10.2019 - HELD THAT:- Similar issue decided in the case of VMS EQUIPMENT PVT. LTD. VERSUS PRIMOSE INFRATECH PVT. LTD. [2020 (10) TMI 385 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH] where the applicant had challenged the decision taken by the CoC in its 6th meeting dated 17.12.2019, by which the applicant i.e. Greater Noida Authority was declared as an Operational Creditor instead of Financial Creditor - this Adjudicating Authority, after considering the submissions of the applicant as wel....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - issuance of demand notice in Form 3 annexed with invoices - query raised from the Operational Creditor as to how the Demand Notice based on invoices issued in Form 3 is in compliance of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- Subject of the Form 3 is Demand Notice/invoice, which requires the Operational Creditor to give comprehensive details of the operational debt in columns from 1 to 7 like Total amount of debt, Date of Default, Calculation of reaching the amount of Default, Particulars of Security held, Record with Information Utility etc. However, in contrast, the Form 4 provides an escape route to t....... + More

Seeking grant of Bail - illegal transfers of valuable foreign exchange - allegation of transmission of more than ₹ 518 Crores to the alleged exporters from Hong Kong - HELD THAT:- Without going into the question whether the rigor of Section 45 of the Act would still apply as a result of the amendment, the appellant is entitled to the benefit of bail principally for the reasons: a. The length of custody undergone by the appellant as against the maximum sentence that could be visited upon the appellant under the offences in question. b. The fact that the investigation in the matter is complete and draft charges have been circulated. c. All other three co-accused have been released on bail. Subject to the appellant furnishing cash security in the sum of ₹ 25,00,000/- with two like sureties to the satisfaction of the Trial Court, the appellant shall be released on bail, subject to other conditions as the Trial Court may deem appropriate to impose - appeal allowed.

Protection of rights of the Union of India - attachment of property - HELD THAT:- In view of the matter being remanded to the Adjudicating Authority, who is still seized of the matter, the Undertaking given by the parties in the connected Appeals are directed to maintain the Status-quo about the property shall continue till the Adjudicating Authority decides the matter again in pursuance of the said remand directions in the order dated 13.12.2017 passed by the learned Tribunal. Appeal disposed off.

Validity of notice of eviction - direction to vacate the property mentioned in the notice within 10 days of receipt of the said notice - HELD THAT:- Mr Tahir Majid Shamsi, the learned Assistant Solicitor General of India (ASGI), appearing on behalf of the Respondents, when asked, seeks some time to get instructions in the matter qua availability of Appellate Tribunal. That apart, the learned Assistant Solicitor General of India submitted that when the Petitioner, admittedly, has already availed the remedy of appeal as provided under the Statute, therefore, pending such appeal, there is no scope for the Petitioner to approach this Court through the medium of the instant Petition. Before proceeding further in the matter, it is thought just and proper to grant one opportunity to Mr Shamsi for reporting instructions in the matter. Accordingly....... + More

Money Laundering - proceeds of crime - scheduled offences - attachment of tainted property - respondents were of the view that since no tainted property of respondent No.5 was available for attachment the property which was acquired by untainted money could also be attached - HELD THAT:- A conjoint reading of the aforesaid provisions of SARFAESI Act and Bankruptcy Law makes it clear that the secured creditors have preferential right of realization of their dues against all other debts and government dues. Provisional attachment of the “proceeds of crime” under Section 5 of the PML Act is not an exercise for recovery of government dues of any nature; rather it is an exercise to seize /confiscate the property acquired by unlawful means of money laundering. Therefore, both the laws SARFAESI and Bankruptcy Act on the one hand; and....... + More

Money Laundering - seeking release of provisionally attached of movable properties - waterfall mechanism - overriding provisions of IBC - NCLT had already passed an order appointing an Official Liquidator for the sale of the assets of the Company In Liquidation - Adjudicating Authority under the PMLA ought not to have passed the Provisional Attachment Order - HELD THAT:- On a plain reading of the provisions of the IB Code, it is clear that statutory dues, which come within the meaning of ‘operational debt’, could be claimed against the Corporate Debtor only under the provisions of the IB Code and not under any other law. All such claims have to be lodged with the Official Liquidator and are payable under the waterfall mechanism provided in Section 53 of IB Code - the dues relatable to the vehicles belonging to the Corporate De....... + More

Validity of attachment of property - whether it is permissible for the Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority? HELD THAT:- In the instant case, except issuing the impugned communication dated 18.03.2020 to the concerned Tehsildar directing him not to issue revenue extracts of even those properties earlier belonging to Zahoor Ahmad Shah Watali and his family members, that too, by an officer of the rank of Assistant Director, not designated in sub-section (1) of Sectio....... + More

Attachment of property involved in money laundering - proceeds of crime - interpretation of statute - expression “reason to believe” which is different from “reason to suspect” - HELD THAT:- Section 5(5) of the PML Act, 2002 makes it clear that order of attachment of competent authority shall be provisional in nature and said authority is under a statutory obligation to file a complaint before the adjudicating authority within 30 days from the date of attachment - Section 8(1) of the PML Act, 2002 makes it obligatory for adjudicating authority to examine the complaint and if he has “reason to believe” that any person has committed an offence, it may serve a notice to said person calling upon him to indicate the sources of income, earning or assets. It may also issue show-cause notice to such person. Aft....... + More

Seeking pre-arrest bail - scheduled offences - first contention of respondent is that the offences under PML Act cause a serious threat not only to the financial system of the country but also integrity and sovereignty and for the offences under the PML Act, pre-arrest bail should not be granted - HELD THAT:- There cannot be any straitjacket formula for exercising jurisdiction under Section 438 Cr.P.C. and it all depends on the facts and circumstances of the case and where the fundamental right to personal liberty of accused is involved Courts cannot exercise jurisdiction mechanically - In the case on hand admittedly summons were issued to the petitioner in the year 2017 directing him to appear before the officials whereas the case of the petitioner is that he received summons in the year 2020 only and he mentioned reasons why he was not ....... + More

Money Laundering - illegal diversion of funds - schedule offence - supply of Gold Bullion or there was only paper transaction - Section 33 of the Sale of Goods Act - HELD THAT:- In the case at hand, the picture is totally different. The criminal Court can independently come to a conclusion that the 22 fixed deposits were proceeds of crime and they were projected as untainted money from MJPL (A3) and Suresh Khatri (A4). The other distinguishing feature in this case is that, the total proceeds of crime is ₹ 318.75crores, out of which, the 22 fixed deposits represent only ₹ 143crores and for the balance amount which has gone into the kitty of MJPL (A3), they can be prosecuted as abettors of the offence of money laundering committed by KGPL (A1). Lastly, the order of the Adjudicating Authority in this case, has not attained finali....... + More

Bail application - Money Laundering - proceeds of crime - possession of moveable and immoveable assets - misuse of official position - Section 13(2) read with Section 13(1)(e) of the P.C. Act - HELD THAT:- Continuing with the detention of the appellant to face the trial in the present case would not serve the cause of justice. Even if the appellant had earlier not appeared, the fact of the matter remains that he had faced trial in the P.C. Act matter and his appeal remains pending. The High Court, in the impugned order dated 25.11.2020, declined the bail at the given stage but directed the Trial Court to proceed with the trial on day-to-day basis and also gave liberty to the appellant to apply for bail afresh, if trial did not conclude within six months from the date of production of copy of its order. The fact remains that this appeal is....... + More

Scope of review petition - error apparent on the face of the record or not - validity and/or legality of the registration of Enforcement Case Information Report (ECIR) in proceedings - effective alternative remedy under Section 8 of The Prevention of Money Laundering Act - territorial jurisdiction - HELD THAT:- It has to be observed that the scope of the Review petition is very limited. The learned Additional Solicitor General appearing for the respondent-Enforcement Directorate submitted that under the guise of Review, the review applicants are only trying to re-argue the case. Therefore, we are not traversing into the submissions made by the parties. For the purpose of reviewing the matter, the matter has to fall within Order 47 of CPC. In the guise of seeking review, it cannot be reargued. This Court has dismissed the writ petition on ....... + More

Seeking pre-arrest Bail - Money Laundering - cheating gullible depositors by attracting them towards different schemes of money investment with false promise of providing high returns - creation and growth of ponzi firms - HELD THAT:- Existence of a prima-facie case regarding nexus of the petitioner with the Saradha Group cannot be denied. Grant of bail to him by the Supreme Court of India in another case also cannot afford him a ground to seek pre-arrest bail in the present case, inasmuch as he was granted bail in the said case solely on health ground while he was admitted in Apollo Hospital, Bhubaneswar. Admittedly, he has since been discharged from the said hospital. There is no reproach on contention of the counsel for the petitioner with regard to invoking the jurisdiction under Section 438 of Cr.P.C. in respect of the person accused....... + More

Money Laundering - scheduled offences - will the judgments of the Supreme Court rendered under the NI Act can be simply applied to the PML Act? - scope of Section 141 of the NI Act and Section 70 of the PML Act - HELD THAT:- The NI Act offences are not economic offences, unlike offences under the PML Act. A prosecution under Section 138 of the NI Act stems from a civil dispute between the drawer and the drawee of a cheque. It gets a criminal colour, only when the drawer fails to pay the drawee within the stipulated period. Whereas, offences under the PML Act are economic offences and can by no stretch of imagination be equated to a prosecution between a drawer and a drawee under the NI Act. It is well settled that statutes not dealing with the same subject matter cannot be said to be in pari materia. Constitution Bench of the Supreme Cour....... + More

Petition pertains to the stage prior to completion of investigation and filing of complaint by Respondent - Summons issued pertaining to the same ECIR, in respect of which present petition is filed - HELD THAT:- An arguable issue arises in the present case, which needs consideration. There is no dispute about the fact that petitioner nos. 1 to 3 are already enjoying an order of interim protection given by the Supreme Court in the pending writ petition. It is only the petitioner no. 4 who is presently apprehending coercive action in pursuance to summons issued by respondent no. 2. Further investigation undertaken by respondent no. 2 can proceed, subject to the result of the present writ petition - issue notice to respondents, returnable on 30.04.2021.

Seeking grant of Regular Bail - Money Laundering - Scheduled Offences - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - requirment for fulfilment of two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- The declaration by the Supreme Court in Nikesh Tarachand Shah's case [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under ....... + More

Money Laundering - scheduled offences - Material present to constitute offence - amendment of PML Act in the year 2009 - applicability of schedule offences’ is concerned to an act committed prior to amendment - HELD THAT:- Part B of the Schedule provides that in Paragraph one, besides several offences under the Indian Penal Code, Sections 120-B, 419 and 420 are included vide Section 13 of the Prevention of Money Laundering (amendment) Act, 2009 (since repealed by Repealing and Amending Act, 2019 (31 of 2019) - It is apt to note that the Complaint of the ED in S.C.No.1 of 2019 impugned and is challenged under Section 482 of the Cr.P.C., simply adopts the Charge Sheet contents/accusations against the Accused No. 13 therein who is the Petitioner/Accused No. 12 in this Criminal Petition. There was a Charge Sheet and Supplementary Charge....... + More

Grant of anticipatory bail - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - Money Laundering - scheduled offence - HELD THAT:- By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” as occurring in Section 45(1) before the judgment of the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were substituted with the words “under this Act”. As per learned ASG, after such amendment, the defect on the basis of which the....... + More

Bank accounts were opened fraudulently - misuse of account without knowledge - shell companies where the cash deposits were transferred from the bank accounts of petitioner and other dummy accounts - HELD THAT:- No allegation of any fraud with State Exchequer or affecting any Govt. policy like demonetization. Neither any allegation nor any material to suggest that money was acquired by cheating anyone, by defrauding anyone, being ransom for kidnapping, proceeds of any dacoity, obtained from any corrupt practice or embezzlement of Govt. fund-sets. The only allegation is that its source was not disclosed in income tax before the cash was deposited in Muzaffarpur. The money belonged to the clients for accommodation entry; petitioner has admitted this fact in the statement given under Section 50 of PML Act. The ED has not stated that the mone....... + More

Seeking grant of Regular Bail - siphoning of funds - scheduled offences - bogus purchase invoices - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- Assuming that the twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words "under this Act" by deleting "offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule" only makes an ostensible change. The offence of money laundering as stipulated un....... + More

Provisional attachment order - seeking grant of interim relief - violation of the statutory provisions as contained in FEMA, 1999 - HELD THAT:- In the present case, the contentions canvassed before this Court can certainly be looked into by the Adjudicating Authority and the date has already been fixed by the Adjudicating Authority. The present appellant-Trust is certainly free to participate in the proceedings before the Adjudicating Authority. Hence, in the considered opinion of this Court, keeping in view the totality of the circumstances of the case and as the matter is pending before the Adjudicating Authority, this Court does not find any reason to interfere with the order of the learned Single Judge as substantial relief has been granted by the learned Single Judge in permitting the operation of two bank accounts in order to cater ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Classification of services - GTA services or not - appellant is transporter of timber/firewood for forest Department of Government of Madhya Pradesh - cartage Challan equivalent to the consignment note or not - period 2013-14 to 2015-2016 - HELD THAT:- The carting Challan in this case is only for internal control of forest department. Such carting Challan is not equivalent to a consignment note which is issued by the transporter. The consignment note is a negotiable instrument and the transporter is bound to deliver the goods to bonafide holder of title, as mentioned in the consignment note. Such element of ‘consignment note’ are absent in the ‘carting Challan’. The carting Challan is not equivalent to consignment note. Accordingly, the appellant has not rendered the services as per the definition of GTA under the Finance Act - appeal allowed - decided in favor of appellant.

Benefit of abatement of 76% under N/N. 01/2006-S.T., 21/97-S.T., 39/97-S.T., 40/97-S.T., 12/2001-S.T., 8/2003-S.T., 12/2003-S.T., 18/2003-S.T., 19/2003-S.T., 2/2004-S.T., 9/2004-S.T. and 10/2004-S.T. - appellant had availed the Cenvat credit in respect of GTA Service - HELD THAT:- The same issue for previous period in the appellant’s own case came before this Tribunal in M/S NJ DEVANI BUILDERS PVT. LTD VERSUS C.S.T. & S.T. -AHMEDABAD [2019 (6) TMI 213 - CESTAT AHMEDABAD] and this Tribunal has held that the appellant is entitled for the abatement Exemption Notification subject to reversal of Cenvat Credit. This very order was challenged before the Hon’ble High Court in MESSRS NJ DEVANI BUILDERS PVT. LTD VERSUS UNION OF INDIA [2020 (11) TMI 798 - GUJARAT HIGH COURT] wherein the Hon’ble Gujarat High Court set aside the ....... + More

Nature of transaction - Service or not - Manpower recruitment and supply service or not - appellant had utilised services of the seconded employees of other firm under contract of employment - employer - employee relationship - case of appellant is that only employees working in foreign group company were deputed to its group company in India, hence is not covered under service provided from outside India - reverse charge mechanism - HELD THAT:- There is no doubt that the service said to be provided by M/s. Imasen Electric Industrial Company Ltd., Japan to the appellant were not taxable in eyes of law, especially when the appellant treated the amount paid to the said persons as salary in terms of Income tax rules and deducted the income tax on the same, in this regard the appellant produced Form No. 16 issued under Income Tax Act, which s....... + More

Principles of natural justice - matter was adjudicated ex-parte, in the absence of the petitioner - petitioner did not appear before the respondent - levy of service tax in respect of service rendered to members - HELD THAT:- One more opportunity can be extended to the petitioner to present its case before the respondent. It is true that a person who did not avail of the opportunity for hearing cannot later complain about violation of principles of natural justice. However, considering the fact that Ext.p11 request was made citing the COVID-19 pandemic and considering the fact that it the specific case of the petitioner that E-mail dated 03-03-2021 fixing the date of hearing on 25-03-2021 had not come to the notice of any of the office bearers of the petitioner, it is only appropriate such opportunity is extended to the petitioner. It is ....... + More

Condonation of delay in filing appeal before Commissioner (Appeals) - appeal was filed beyond the period prescribed under section 85 (3) of the Finance Act - Rejection of refund claim - HELD THAT:- Initially the appellant was advised to file a representation before the Chief Commissioner against the order dated 26.10.2009, but subsequently, the counsel who was contacted, after the Range Officer informed the appellant that no appeal had been filed before the Commissioner (Appeals), advised that an appeal was required to be filed before the Commissioner (Appeals), that an appeal was filed on 13.05.2010. We are satisfied from the averments made in the delay condonation application that the appellant was prevented by sufficient cause from filing the appeal before the Commissioner (Appeals) within a period of three months from the date of rece....... + More

GTA Services - service of transport operator or owner and not of any transport agency for inward transportation of raw material to their factory - adjudicating authority took the ground that there was no existence of ‘goods transport agency’ - reverse charge mechanism - HELD THAT:- There is no such provision in the scheme of Acts and Rules permitting assumption of facts to be made by the Adjudicating Authority, without reference to the facts on record. In this view of the matter, the basic fact and /or the requisite for charging service tax under GTA service i.e. service being provided by ‘goods transport agency’ as defined, nor existence of consignment note being there, the demand has been raised improperly as well as whimsically. The penalties imposed are also set aside - the appeal is allowed.

Reopening of old assessments - Notifications dated 30th January 2009, 10th September 2014, February 2015 - Circular dated 03rd March 2015 - Para 12.3 and 12.4 of the Master Circular No. 1053/02/2017-CX - Rule 3 of the Service Tax Rules, 1994 - HELD THAT:- Issue notice. Ms. Anju Gupta, Advocate accepts notice on behalf of respondent no. I-UOI. Mr. Harpreet Singh, Advocate accepts notice on behalf of respondent nos. 2 and 4. Let a counter-affidavit be filed within four weeks.

Refund of CENVAT credit - Certain FIRCs were addressed to unregistered premises - certain FIRCs were not produced can be considered as Export Turnover or not - invoices addressed to unregistered premises - non-compliance with the conditions 2(g) and 2(h) of N/N. 27/2012-CE(NT), dated 18.06.2012 - ceiling of the provisions of section 142(3) of CGST Act, 2017 - amount of refund claimed in ST-3 return, not debited - HELD THAT:- The appellants have not been able to explain the required documents before the refund sanctioning authority. The learned counsel has submitted that they would be able to produce and also explain in regard to necessary documents if they are given further chance. The matter requires to be remanded to the refund sanctioning authority - Appeal allowed by way of remand.

Refund of credit availed on the service tax paid on input services - Information Technology Services and also export of same service - reverse charge mechanism - period July, 2013 to September, 2013 - refund denied on the ground that the said credit has not been shown in the ST-3 returns - HELD THAT:- It is not in dispute that the appellants are eligible for credit to the tune of ₹ 16,93,074/- on the service tax paid by them under reverse charge mechanism on input services availed by them. The only reason for denying the credit is that they have not reflected such availment of credit in ST-3 returns for July, 2013 to September, 2013 - The services having been exported, the service tax paid on the input services used for export of services should be refunded to the appellants as per Rule 5 of Cenvat Credit Rules, 2004. The appellants....... + More

SSI Exemption - branded service or not - service falling under threshold limit or not - Cable operator service - benefit of N/N. 6/2005-ST dated 1.03.2005 - exemption denied on the ground that appellant provided Branded service - HELD THAT:- Similar issue decided in the case of MS BLUE STAR COMMUNICATION, MS EK ONKAR DIGITAL SERVICES, MS SHARMA CABLE, MS EK ONKAR ENTERPRISES, MS SHIVA CABLE VERSUS C.C.E. & S.T. -LUDHIANA [2019 (2) TMI 1385 - CESTAT CHANDIGARH] where it was held that appellants are entitled for exemption under Notification No.6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012, extended period of limitation is not invokable, and appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitte....... + More

Short payment of service tax - Service Tax Voluntary Compliance Encouragement Scheme, 2013 - abatement sought for material components - availment of Composition Scheme - substantial false declaration or not - HELD THAT:- The calculation of tax short paid, as made by the ld. Commissioner in the impugned order, is not due to any mis-declaration or false declaration under VCES. Ld. Commissioner has categorically observed that difference in tax liability is mainly due to interpretation and change in calculation of service tax, therefore, the mistake of the respondent/assessee in the declaration is bona fide and there is no malafide on their part. In view of the decision of the Larger Bench in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], the respondent is not....... + More

Interest on delayed refund (of pre-deposit) - relevant time - to be granted from the date of communication of the final order of the Tribunal till the date of grant of refund, or from the date of pre-deposit? - HELD THAT:- The issue is no longer res integra and in the case of M/S J.K. CEMENT WORKS VERSUS COMMISSIONER, CENTRAL EXCISE, CENTRAL GOODS AND SERVICE TAX, UDAIPUR [2021 (3) TMI 123 - CESTAT NEW DELHI], wherein under the similar facts and circumstances, this Tribunal following the ruling of the Hon’ble Supreme Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] as well as of the Hon’ble Allahabad High Court in the case of HELLO MINERALS WATER (P) LTD. VERSUS UNION OF INDIA [2004 (7) TMI 98 - ALLAHABAD HIGH COURT] held that interest is payable from the ....... + More

Valuation - life insurance business - treatment of surrender value’ exacted, on premature exit, from holders of ‘unit linked insurance policy (ULIP)’as consideration for provision of service - whether the ‘surrender charge’ is consideration for a service that comes within the ambit of the levies pertaining to the insurance sector during the period of dispute? HELD THAT:- It is common ground that upon an insured ceasing to comply with the obligation to pay the premium at stipulated intervals, the policy is deemed to be surrendered and the holder entitled to ‘surrender value’ representing the portion of the receipts that had been invested in the appropriate funds. There is also no dispute that the amount disbursed is lesser than the value of the funds on the date of surrender. The proposition of Lea....... + More

Refund of Cenvat Credit - Air Travel Agency Services - Short-term Hotel Accommodation Services - Cleaning Services - Pest Control Services - Krishi Kalyan Cess - HELD THAT:- Though, the authority below has denied the credit availed on these services alleging that these services have no nexus with the output services, the department has no case that the services were not availed by the appellants for the purpose of providing output services. As also, there is no evidence to establish that these services were used for personal consumption - From the documents furnished, it is convincing that these services have been availed by the appellants for export of their output services - Further, this issue is covered by the decision of the Tribunal in the appellant’s own case M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD. VERSUS COMMISS....... + More

Delay in filing appeal before the Apex Court - Condonation of delay - Reduction of delay in filing SLP - one reason for the delay is due to the liner process being followed currently and even if we have a detailed timeline, it may be difficult to avoid delay unless steps in filing of SLP were merged. He suggested that instead of files going from one desk to another in the office of Commissioner in the field , then in Directorate, in CBDT/CBIC and then Ministry of Law and likewise again in the return journey, it should be examined whether an Inter-ministerial standing committee would be administratively possible. HELD THAT:- During the course of the hearing, various suggestions have been discussed including the need to incorporate technological innovations in the process of monitoring litigation involving the revenue arm of the Union gover....... + More

Refund claim of input service tax credit - input service or not - Erection, Commissioning & Installation Services - denial of refund on the ground that the definition of input service exclude service portion in executing of works contract service, including services listed under clause (b) of Section 66E of Finance Act, 1994, insofar as used for construction of executing of works contract services of building of civil structure or part thereof - HELD THAT:- The Commissioner(Appeals) has not properly appreciated the definition of input service as provided in Rule 2(l) of CENVAT Credit Rules, 2004. On perusal of definition of 'input service', it is found that the credit which has been excluded from the definition of input service under clause 2(A) are (a) construction or execution of works contract of a building or a civil struc....... + More

Validity of appellate order - applicability of decision in the case of M/S ICS FOOD PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, NOIDA [2018 (7) TMI 1061 - CESTAT ALLAHABAD] - the department had elected to carry the said order in an appeal before the Supreme Court and hence the said decision had not attained finality - HELD THAT:- There are no reason to relegate the petitioner to the appellate remedy at this stage. In our opinion, interest of justice would be sufficiently served if a limited remand is ordered to the Commissioner (Appeals-III) for revisiting his decision based on the circumstance that the decision of the Customs, Excise and Service Tax Appellate Tribunal in M/S ICS FOOD PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, NOIDA [2018 (7) TMI 1061 - CESTAT ALLAHABAD] has since attained finality. If indeed the said decision has ap....... + More

Condonation of delay in filing claim - failure to remit the amount due under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 even after repeated extensions provided - HELD THAT:- In the present case, the Writ Petitions are presented only on 30.04.2021, 10 months after the last date for remittance of the amounts. No plausible reason is set out in the affidavit justifying the delay except to state that the assessees were facing hardships on account of the COVID-19 pandemic. In the light of the long delay sans explanation, there is no merit in these Writ Petitions and the same are dismissed.

Refund of service tax paid - refund arose as a consequence of introduction of Section 104 of the Finance Act w.e.f. 31.03.2017 - rejection on the ground of non-submission of necessary documents - requirements under Section 11B of the Central Excise Act, 1944 as made applicable to Finance Act, 1944 vide Section 83 of the Act not complied with - N/N. 41/2016 dated 22.09.2016 - HELD THAT:- N/N. 41/2016 dated 22.09.2016 has exempted taxable service provided by the State Government Industrial Development Corporation/Undertakings to industrial units by way of granting long term lease on industrial plot from so much of service tax leviable thereon under Section 66B of the said Act, as is leviable on the one time upfront amount payable for such lease. Vide Section 104 (1), exemption was provided from said services for the period from 01.06.2007 t....... + More

Maintainability of appeal - non-compliance of pre-deposit under Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - It is argued by the Ld. Consultant that amount deposited by the appellant towards the service tax should be considered as payment towards mandatory predeposit and the appeal ought to have been considered on merits - HELD THAT:- The appellant has not been given the benefit of Sabka Vishwas Scheme as there was delay in payment of the service tax under the said scheme. Since the amount paid by the appellant is towards the service tax confirmed under the Order-in-Original dt. 24.06.2019, the said payment ought to have been considered towards compliance of pre-deposit having been made before the appeal is taken up for hearing. The Commissioner (Appeals) has issued reminders to the appellant....... + More

Violation of principles of natural justice - service of notice - adjudication procedure under Section 33A(1) and Section 37C of the Central Excise Act, 1944 not followed - HELD THAT:- A perusal of the paper book reveals that it is the case of the Revenue Department that though summons had been served upon the petitioner on 17th September, 2018, yet it had neither appeared before the respondent Department nor any documents had been filed on its behalf. It was only after the respondent-Department contacted the petitioner’s auditor, that he appeared and made a statement. Later also efforts were made to serve the petitioner with notices, however, the petitioner was not available at the given address. Keeping in view the fact that the demand is a high-pitched one and subsequent notices issued by the respondent to the petitioner had not b....... + More

Condonation of delay of 107 days in filing the appeal - sufficient explanation for condonation of delay not provided - resignation of the concerned official dealing with excise matters - availability of alternate remedy by way of appeal - Section 35G of the Central Excise Act, 1944 - HELD THAT:- The delay of 107 days is not inordinate for the 1st respondent/Appellate Authority to dismiss the appeal as the precious rights to agitate the issue arising out of the order passed by the 2nd respondent/Commissioner of Customs and Central Excise, Salem cannot be denied to the petitioner unless there is an inordinate delay which has not been answered properly and condonation of the delay will cause prejudice to the interests of the Revenue. The alternate submission of the Learned Counsel for the respondents that the remedy lies by way of an appeal ....... + More

Interpretation of statute - 'the person chargeable with the duty', in the main part of sub-section (1) of Section 11A of the Central Excise Act, 1944 - by such person or his agent in the Proviso - whether only one person can be charged with the duty on a given goods or otherwise? - Clandestine removal - demand of duty from two companies SAS and ASRM, who jointly involved in the manufacturing of the goods - HELD THAT:- The appeal admitted on substantial questions of law. Due to efflux of time, we are of the view that it may not be necessary to adjudicate these appeals and decide the substantial question of law as the department has availed the opportunity granted by the Tribunal in the impugned order and issued Show Cause Notices afresh, which are slightly different from the Show Cause Notices, which have ultimately culminated into....... + More

Refund of unutilised Cenvat Credit in cash - Credit lying in the books of accounts at the time of closure of factory being 28.6.2017 - non-submission of reliable supporting documents related to refund claim - applicability of Rule 5 of CCR, 2004 - HELD THAT:- Reliance placed in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] holding that the appellant is entitled to refund of the amount of Cenvat Credit lying in their Cenvat Credit account on closure of business - further it is held that the appellant is entitled to interest as per Rules, as per section 11BB of Central Excise Act, i.e. three months after the date of application till the date of grant of refund. Appeal allowed - decided in favor of appellant.

Jurisdiction for passing adjudication order - duty/tax involved in the present case exceeds ₹ 2 crore - Circular No. 1049/37/2016-CX dated 29-Sep-2016 - HELD THAT:- Very same issue was decided in M/S PALAK DESIGNER DIAMOND JEWLLERY VERSUS UNION OF INDIA [2019 (8) TMI 714 - GUJARAT HIGH COURT] - The issue involved in the said judgment was whether the Order-In-Original in respect of the Central Excise matter passed by Joint Commissioner is legal and correct or since the amount involved is more than ₹ 2 Crores the competent authority to issue the Show Cause Notice and pass the adjudication order should be Commissioner, and it was held that it cannot be said that the Joint Commissioner had no jurisdiction to issue the Show Cause Notice and adjudicate the same. Following this principle in the present case also when there is a clear....... + More

CENVAT Credit - inputs or not - menthol oil/flakes - Jurisdiction of supplier - sanctity of promulgation of such geographically delimited harbours of privilege - HELD THAT:- From the record of proceedings, it is found that the several independent arguments for setting aside the demand of duties, and the imposition of detriments, was disregarded by the adjudicating authority on the assurance of the finding of lateral jurisdiction on goods not having been supplied - It would, therefore, appear that the adjudicating authority was influenced entirely by the finding of non-manufacture on the part of the supplying units by the coordinate statutory functionary which ceases, owing to nullification by the coordinate bench of the Tribunal, to sustain the impugned order in the absence of any other limb. In the circumstances of these facts as well as....... + More

Clandestine Removal - reliability of statements - sufficiency of evidence or not - cross-examination of statements - persons failed to stand the earlier statements - principle of preponderance of probability - difference of opinion - Majority Decision - HELD THAT:- The two types of standards of proof applied in proceedings are ‘proof beyond reasonable doubt’ and ‘proof of preponderance of probability. The appreciation of evidence in either of these types of standards of proof differs depending on the facts involved. In a serious case such as evasion of duty by fraud, the degree of appreciation of evidence has to be higher than in a case of allegation of mere delay in payment of duty though in both cases the evidence has to be appreciated on the preponderance of probability. In adjudication proceedings, there may be facto....... + More

Principles of Natural Justice - petitioner did not informed about the summons to their counsel regarding the personal hearing - the impugned order was passed without providing personal hearing to the learned counsel who represented petitioner - HELD THAT:- This Court is of the considered opinion that in all circumstances, the parties aggrieved are bound to prefer an appeal before the appellate authority. However, in certain circumstances, the Courts are bound to consider whether the denial of opportunity caused certain prejudice to the interest of the person aggrieved. In the present case, admittedly, the summons were issued to the petitioner. However, the learned counsel for the petitioner entered appearance in the proceedings before the respondent on 04.03.2014 itself. Thus, there is a possibility that the petitioner would not have info....... + More

Reversal of CENVAT Credit - spent wash and press mud - waste/exempt goods - common inputs used in manufacture/clearance of spent wash and press mud in terms of Rule 6(2) and Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- The very same issue was considered by the Tribunal in the appellant’s own case M/S. BANNARI AMMAN SUGARS LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, SALEM COMMISSIONERATE [2018 (11) TMI 1449 - CESTAT CHENNAI] where it was held that press mud does not fit into the definition of “exempted goods”, as defined under 2(d) of CCR because it is not an excisable good; nor can it be termed as a final product because it is not manufactured or produced from input or using input service. The demand cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant.

Rejection of Refund claim in cash of differential duty - SCN was not issued - principles of natural justice - Section 142 (3) of the C.G.S.T. Act, 2017 - HELD THAT:- The Order-in-Original has been passed undoubtedly without the issuance of Show Cause Notice. The Commissioner (Appeals) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by the appellant-company to argue before the authorities. It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The fundamental principle has ....... + More

CENVAT Credit - common input services on trading activity / traded goods - non-maintenance of separate accounts under Rule 6(2) of Cenvat Credit Rules - non-filing of declaration as contemplated in Rule 6 (3A) - suppression of facts or not - extended period of limitation - HELD THAT:- The Tribunal in the case of Dalmia Bharat Sugar & Industries Ltd., vs. CCE [2017 (10) TMI 1027 - CESTAT NEW DELHI] has followed the decision in the case of Mercedes Benz India Pvt Ltd [2015 (8) TMI 24 - CESTAT MUMBAI], wherein it was observed that the Commissioner is not justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the Dep....... + More

Refund of excise duty - benefits under the Northeast Industrial Policy - UPVC Pipes, fittings etc. - N/N. 20/2008-Central Excise dated 27.03.2008 - HELD THAT:- As the Notification dated 27.03.2008 provides for a legal right to the assessee to claim for a special rate to be fixed in the event of there-being any add-ons to the goods manufactured, it is considered that without an appropriate decision being taken on such claim for special rate, it would be inappropriate for the department to proceed against the petitioners as per the rates provided in the Notification dated 27.03.2008. This petition stands disposed of by directing the Principal Commissioner of GST Guwahati to consider the aforesaid application of the petitioner dated 03.04.2021 claiming for a special rate to be fixed on the basis of the add-ons made to the goods manufactured - petition allowed.

Utilization of CENVAT Credit on Education Cess and Secondary & Higher Education Cess, for payment of Excise duty - period post amendment of Cenvat Credit Rules w.e.f. 01.03.2015 - penalty - HELD THAT:- The decision by the Hon’ble Delhi High Court in CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2018 (2) TMI 1264 - DELHI HIGH COURT] has analysed the issue whether Education Cess and Secondary & Higher Education Cess can be utilized for payment of service tax / excise duty after the introduction of amendments in Rules 3 (7) (b) of Cenvat Credit Rules,2004 by Notification No.12/2015-CE (NT) dt. 30.04.2015 - The demand raised under the SCN for recovery of the wrongly availed cenvat credit is legal and proper. Penalty - HELD THAT:- Taking into consideration that the issue is of interpretatio....... + More

CENVAT Credit - credit denied on the premise as per N/N. 02/14-CE (N.T.) dt.20.1.2014, the appellant was not entitled to credit prior to the N/N. 01/10-CE dt.6.2.2010 - extended period of limitation - HELD THAT:- Reliance placed in the case of DHARMPAL SATYAPAL LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2016 (9) TMI 1389 - CESTAT ALLAHABAD], the appellant is entitled to take credit on the inputs. Similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable - Admittedly, in this case, the SCN has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.

CENVAT Credit - duty paying documents - denial on the ground that the appellant company has availed CENVAT credit on the strength of fake invoices without actually receiving the goods in violation of the CENVAT Credit Rules, 2004 - demand based on statements made by the manufacturers and the Excise dealers - rejection of request for cross-examination of the persons whose statements have been relied upon - HELD THAT:- The entire proceedings have been initiated on the basis of statements made by the manufacturers and the Excise dealers which have been solely relied to conclude that the appellant has not received the goods. The appellants in the course of adjudication have been consistently demanding cross-examination of the witnesses whose statements have been heavily relied upon by the Department. The appellants have pleaded that the goods....... + More

CENVAT Credit - input services - outward GTA services - sale of goods on FOR basis - price is inclusive of freight - HELD THAT:- The facts and documents related there to submitted by the learned Counsel shows that sale of goods is on FOR basis, the freight was paid and born in bond by the appellant. Sale price is inclusive of freight on which excise duty was charged. Similar issue decided in appellant's own case BANCO PRODUCTS INDIA LTD VERSUS C.C.E. & S.T. -VADODARA-I [2021 (3) TMI 507 - CESTAT AHMEDABAD] where it was held that the invoices clearly mentioned a condition that the sale is on FOR basis and risk upto the destination is covered. It is also not the case of the department that outward transit insurance was paid by the consignee. In this case it is clear that the sale is on FOR basis and sale invoices itself is a kind of....... + More

Wrong Circular was mentioned - Board Circular No. 97/8/2007-ST was wrongly mentioned whereas the correct circular No. is 1065/4/2018-CX dated 08.06.2018 which needs to be corrected - HELD THAT:- There is an apparent error in mentioning the circular no. in para 4 of the order. Accordingly in place of Circular No. 97/8/2007-ST, Circular No. 1065/4/2018-CX dated 08.06.2018 is corrected and read accordingly. The error pointed out by the applicant stands corrected. ROM application allowed.

CENVAT Credit - freight component in relation to transport of goods from non-taxable territory to India - as per the lower authorities the said service was exempted from levy of Service Tax during the period when such import of goods took place - appellant was not liable to pay the tax, but he paid erroneously - reverse charge mechanism - penalty - HELD THAT:- It is an admitted fact that the first Appellant was not liable to pay Service Tax on the transportation of goods by vessel services. However, the tax was paid and accordingly the Appellant had availed Cenvat credit of the same. The issue above is no longer res integra in view of the judgment of the Hon’ble Madras High court in the case of THE COMMISSIONER OF CENTRAL EXCISE, AND SERVICE TAX LARGE TAXPAYER UNIT VERSUS M/S TAMILNADU PETROPRODUCTS LTD, THE CUSTOMS EXCISE AND SERVI....... + More

100% EOU - demand of excise duty on the raw grade oil - LOP, raw oil (not allowed for export) - demand on the ground that the respondent have wrongly availed benefit of Serial No. 20 of the Notification No. 23/2003-CE since raw oil cannot be considered as a mere waste even though it may be of no use to the Respondent but it is a main raw material used for manufacture of refined oil. Can the said raw oil be treated as if manufacture in a DTA Unit and can be cleared under exemption N/N. 4/2005-CE dated 01.03.2005 and predecessor N/N. 6/2002-CE dated 30.04.2003 as amended by N/N. 37/2003-CE dated 30.04.2003 which is applicable to a DTA Unit? HELD THAT:- From the remand order of the tribunal, this tribunal has given clear direction to the Learned adjudicating Commissioner that he shall consider the clearance of raw oil as if cleared by DTA un....... + More

Refund of excess Excise Duty paid - erroneous adoption of higher price - denial on the ground that appellant has failed to prove payment of excess duty - documentary evidences not considered - violation of principles of natural justice - HELD THAT:- The appellant filed refund claim of the excess duty paid along with various documents in support of his claim but both the authorities have not examined the documents and the statements submitted by the appellant in support of their claim so much so the Chartered Accountant Certificate issued by the CA of the appellant as well as of the M/s Welspun Corp. Ltd have not been considered - The impugned order has simply observed that the appellant has failed to prove the payment of excess duty without considering the plethora of documentary evidences on record, the CA Certificate produced on record ....... + More

Maintainability of petition - availability of efficacious alternate remedy - bar on appeal/objection against the impugned order - order has been passed ‘giving effect to’ the order of this Court - Seeking refund alongwith interest - HELD THAT:- This Court is of the opinion that the present case does not call for any interference under Article 226 of the Constitution, as an efficacious alternative remedy is available with the petitioner under Section of 74 of DAVT Act. The petitioner has failed to demonstrate any patent illegality like violation of principle of natural justice or of fundamental rights in the impugned order. The Court had merely directed the respondents to decide the claim of the petitioner in accordance with law. Since the Court has not decided the matter on merits, the impugned order cannot be said to be &lsqu....... + More

Classification of goods - powder quoting material - to be classified under Central Excise Tariff Heading (CTH) 39 or under Entry 51 of 3rd Schedule of the Act? - applicability of Notification dated 03.04.2005 - Section 4(1)(b) of Central Excise Act - HELD THAT:- Section 4(1)(b) of the Act prescribe for liability to tax and rates thereof. Section 4(1)(ii) prescribes that in respect of goods mentioned in 3rd Schedule, the tax shall be levied at the rate of five and half percent. Entry 51 of Schedule III of the Act covers industrial inputs and packing materials as may be notified. The State Government has issued a Notification dated 30.04.2005 notifying the industrial inputs and packing materials. Entry 133 of the aforesaid Notification covers Chapter Heading No.3907, which in turn covers polyacetals, other polyethers and epoxide resins, in ....... + More

Rectification of mistake - error apparent on the face of record or not - escaping of turnover - refund the excess Input tax credit - HELD THAT:- The impugned order at Ext.P4 has considered this aspect and it has been observed by the rectifying authority that the petitioner/dealer has failed to produce the invoices and had admitted that the suppliers failed to upload the invoices and therefore the tax was not remitted to the exchequer and hence the impugned tax credit came to be rejected. Escaped turn over - HELD THAT:- The same point was considered in the rectification order with a finding that the turn over taken for assessment was only in respect of Form No.10 relating to the traders. The turn over of Form No.10B was not taken in the order of assessment and so there is no question of giving credit of payment as per Form No.10B. With the....... + More

Violation of principles of natural justice - impugned order passed without granting any further opportunity of hearing to the petitioner - penalty u/s 67 of the KVAT Act - HELD THAT:- The petitioner was not granted an opportunity of hearing in the matter, the impugned order at Ext.P8 is quashed and set aside and the matter is remitted for fresh consideration to the 1st respondent State Tax Officer. The petitioner to appear before the 1st respondent State Tax Officer at 11.00 A.M on 21.07.2021 along with all necessary records and then to abide by the further directions of the 1st respondent State Tax Officer. He shall co-operate the 1st respondent State Tax Officer in disposal of the matter without seeking any adjournments. The learned counsel for the petitioner prays that till disposal of the issue of the penalty the notice at Ext.P10 be ....... + More

Validity of assessment order - assesses have not filed option letter for payment of tax under compounding scheme - discrepancies in the turnover - HELD THAT:- This Court is of an opinion that the impugned order stipulates that regarding the difference in the turnover, the dealers have file Form WW and Profit and Trading and loss account for the Month of December 2014 only. At the time of filing Form WW, they have reported that the total sales turnover is ₹ 56,08,055/- in the Trading Account. At that time of inspection, they have not reconcile the above turnover before the Enforcement Officials. Now, they have stated that the correct turnover is ₹ 62,52,658/- only. But the trading account, they have reported the turnover is ₹ 56,08,055/- only. At that time personal hearing also, they have not reconcile how they have shown....... + More

Interest on amount claimed - entire case of the petitioner is that the amount which the respondents had claimed under the provisions of The Goa Value Added Tax Act, 2005 was already with the respondents and therefore, there was no question of claiming any interest on the said amount - HELD THAT:- The Tribunal, after having accepted the petitioner's case that there was no valid consideration of their main contention or that there was no reason assigned for rejection of his main contention, would have remanded the matter to the Assistant Commissioner of Commercial Taxes and Appellate Authority and not the Commissioner to exercise power under Section 25(4) of the said Act. The impugned order is modified and it is directed that the petitioner's appeal before the Assistant Commissioner of Commercial Taxes and Appellate Authority to res....... + More

Validity of assessment order - erroneous application of the provisions of the TNVAT Act and the assessment orders passed which resulted exercise of jurisdiction erroneously - input tax credit to be considered for the purpose of passing an assessment order or not - applicability of amendment as issued in the Tamil Nadu Act, 13 of 2015 with effect from 29.01.2016 - HELD THAT:- Usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is c....... + More

Refund of Input Tax Credit - purchase turnover corresponding to export sales - rejection on the pretext that customs clearance certificate was not produced by the petitioner - HELD THAT:- Admittedly, under Section 38(1) of the APVAT Act, 2005, refund due to an exporter has to be made within 90 days from the date of VAT return, and so the 1st respondent who is presumed to be aware of the said provision, could not have rejected the refund due to the petitioner - More importantly, on 28.04.2006, after remand by the Appellate Deputy Commissioner on 18.04.2006, it is the 1st respondent who had issued advice to the petitioner referring to the petitioner’s application for refund of ₹ 4,71,347/- stating that the said refund claim was accepted. It is not in dispute that the petitioner’s application for refund enclosed the documen....... + More

Non-grant of interest on the additional refund amount - respondent passed order with regard to the additional refund payable to the petitioner, but, had failed to award statutory interest - section 38(2) of Gujarat VAT Act - HELD THAT:- It is not disputed and even otherwise stated in the orders passed in revisions, the petitioner, taking advantage of the Amnesty Scheme, had made payment of the tax amount only and the petitioner was granted the remission for the interest amount as per the order dated 21.07.2020. The order passed by the appellate authority having been revised by the revisional authority as per the order dated 21.07.2020, the question of invoking the provisions contained in section 38(2) of the said Act did not arise. It is needless to say that as per the provisions of section 38(2) of the said Act, a registered dealer entit....... + More

Withholding of the Refund of the tax paid - change in classification of goods - Mango pulp/puree - denial of refund due to the petitioner on the ground of the pendency of the tax revision cases before the Hon’ble High Court - HELD THAT:- The approach of the respondents in not granting refund along with interest beyond the period permitted, without the assessee/ dealer asking for the same, in contradistinction can be compared with the proceedings under Income Tax Act, 1961. In the assessment orders / intimations issued by the Income Tax Authorities, where refund is due, the proceeding issued itself provides for the calculation of Interest under Section 244-A of the Income-tax Act, 1961, and the same is paid out along with the refund of tax. Though it is contended by the 3rd respondent that he exercised powers conferred under Section ....... + More

Reopening of completed assessment - declaration forms filed by the petitioner claiming concessional rate of tax/exemption not considered - allegation of defective ‘C’ and ‘H’ forms - violation of principles of natural justice - HELD THAT:- The 1st respondent ought to have considered the fact that the declaration forms are not generated by the petitioner, and on the other hand, are issued by the concerned authorities of the petitioner’s buyers, located in the other State. The petitioner cannot compel the authorities in the respective States to fill up the details before the same are issued to the petitioner, who merely on receiving the same, has filed with the 1st respondent. If only the 1st respondent had issued a notice pointing out the deficiencies and returned the defective ‘C’ and ‘H&rsq....... + More

Validity of NIL demand assessment order - non-availability of documents - benefit of concessional tax - Inter-State sale of goods - sales during the course of transit - HELD THAT:- There was a Nil Assessment Order passed under the CST Act, 1956 in favour of the petitioner for the year 2009-10 by the 3rd respondent - This order had been revised by 2nd respondent under Section 32 of the Telangana VAT Act, 2005 r/w Section 9(2) of the CST Act, 1956, and the 2nd respondent withdrew allegedly incorrect exemption/concessional rate allowed to the petitioner to the tune of ₹ 2,19,10,137/-. The finding of the Deputy Commissioner (CT), Secunderabad Division, Hyderabad that only clerical or arithmetical mistake apparent from the record are liable to be corrected under Rule 60 is unexceptionable - there are no error in the order passed by the 2nd respondent warranting interference by us in exercise of jurisdiction under Art. 226 of the Constitution of India. Petition dismissed.

Nature of transaction - Sale or service - installation of Customer premises network equipment by the company - transfer of right to use - dominant purpose is to use the only machinery in the telephone instrument, or to avail telecommunication service - HELD THAT:- The revision is admitted on substantial questions of law. Learned Standing Counsel prays for and is granted time to file reply within four weeks - List this case on 18.08.2021.

Rectification of mistake - mistake apparent on the face of record or not - petitioner was not afforded an opportunity of personal hearing while passing of the endorsement - violation of principles of natural justice - HELD THAT:- No doubt petitioner has addressed an Email to the Assessing Officer on 25.04.2021 stating that additional statements were being filed along with certain attachments. Additional submission is also enclosed at Annexure-'C'. A perusal of which would reveal that the petitioner had sought to resile from the earlier declaration in VAT Form 240 that has been made pursuant to inadvertent error that has been recorded in the sales record that was reflected in VAT Form 100 filed in the month of November, 2016 where the sale return has been inadvertently mentioned as ₹ 66,80,58,118/- instead of the actual sale ....... + More

Misconduct under Rule 3 of Karnataka Civil Services (Conduct) Rules, 1966 - registration certificate issued without proper verification - information furnished by the applicant in Form No.1 as required under Rule 9(6) of the Karnataka Sales Tax Rules, 1957, not investigated - HELD THAT:- As the tribunal has quashed the order of punishment on the sole ground that act of respondent issuing registration without proper verification was not a misconduct same requires to be examined. From the enquiry report, it is seen that, applicant had mentioned date of commencement of business as 01.04.1999, which was reported by the Inspector to be incorrect. Respondent, who was the responsible officer, was required to have taken hint to make further enquiry even from the report submitted by the Inspector - Sub-rule 6 of rule 9 very clearly stipulates that....... + More

Allegation of corruption against the Assistant Commissioner (Assessment) - Irregularity in passing the assessment order - Whether an Assistant Commissioner of the Sales Tax Department, who passes an order of assessment of tax under the Kerala Value Added Tax Act, 2003, is entitled to get the protection envisaged under the Judges (Protection) Act, 1985? HELD THAT:- Section 79 of the KVAT Act has nexus with official acts done under that statute. The section consists of two sub-sections which operate in two different fields. The first sub-section speaks of bar of suits against any officer or servant of the Government, for any act done or purporting to be done under the KVAT Act, without the previous sanction of the Government. The second sub-section deals with liability of an officer or servant of the Government in respect of any such act in....... + More

Violation of Principles of Natural Justice - reassessment afresh after providing an opportunity of personal hearing - deemed assessment order by accepting the total turnover reported through the returns as required under Section 22(2) of the TNVAT Act - HELD THAT:- Section 27 of the Tamil Nadu Value Added Tax Act, 2006, provides for reasonable opportunity, which includes the personal hearing under Section 27(4) of the Act, which is mandatory. However, the petitioner has not been given personal hearing and therefore, considering the facts and circumstances of the case, this Court is of the considered view that the impugned order is liable to be set aside and the matter needs consideration afresh. The matter is remanded back to the second respondent for fresh consideration after giving reasonable opportunity including the personal hearing as contemplated under Section 27(4) of the Tamil Nadu Value Added Tax Act, 2006 - Petition allowed by way of remand.

Maintainability of petition - availability of alternative remedy of appeal - Validity of Original Assessment Order - appealable order or not - Violation of principles of natural justice - no opportunity of hearing was provided to the writ petitioner - HELD THAT:- Admittedly, the Original Assessment Order is an appealable order under the provisions of TNVAT Act, more specifically, Section 51. Section 51 contemplates appeal to the Appellate Commissioner, Section 58 provides appeal to the Appellate Tribunal and Section 59 and 60 provides appeal and revision to the High Court, respectfully as the case may be - the Statutory remedy contemplated are to be exhausted. High Court cannot adjudicate the disputed issues with reference to the documents or evidences as the Appellate Authorities are the Final Fact Finding Authorities. Thus, the petition....... + More

Reopening of assessment proceedings - Refusal to permit the petitioner to file ‘F’ forms - interstate transfer to branch unit at Karnataka - HELD THAT:- Instant case relates to the assessment year 2012-13. Hence, the dealer was required to file the declaration forms within June, 2013 as per the amended rule. Admittedly, he failed to submit the declaration forms within the said period. In 2015 show cause notice was issued and ex-parte assessment order was passed on 31.10.2015, as the petitioner did not participate in the said proceedings. Thereafter, demand notice dated 09.11.2015 was issued and as the petitioner did not pay the tax liability, notice of attachment of land was issued on 09.02.2018. The dealer was required to submit ‘F’ declaration forms with regard to interstate branch transfer by June, 2013, but he ....... + More

Re-classification of goods - rate of tax on hire charges - petitioner had been initially served with a show-cause notice calling upon him to respond why tax at the rate of 1% on the hire charges be not imposed but subsequently, by invoking Section 21(5) of the VAT Act a revised show-cause notice levying tax at a higher rate i.e., 14.5% was proposed. HELD THAT:- Section 21 of the VAT Act provides for the procedure for assessment of tax in respect of a VAT or TOT dealer, who fails to file return within the prescribed time. Sub-section (4) of Section 21 inter-alia provides that such assessment shall be made within a period of 4 years from the end of the period for which the assessment is made. Sub-section (5) thereof enlarges the period of limitation to 6 years for making such assessment to 6 years from the date of filing of the return in th....... + More

Dishonor of Cheque - non-CTS-2010 cheque - valid cheque or not - scope of four corners of Section 138 of the Negotiable Instruments Act - Scope of circular issued by Reserve Bank of India dated 18.3.13 - time limitation - HELD THAT:- The circular issued by Reserve Bank of India dated 18.3.13, which has been pressed into service to put forth the contention that the non-CTS-2010 cheque is an invalid cheque, however, clause (c) of the circular issued by Reserve Bank of India provides that all residual non-CTS-2010 cheques with customers will continue to be valid and accepted in clearing houses (including the Cheque Truncation System (CTS) Centres) for another four months up to July 31, 2013, subject to a review in June, 2013. From the said clause it is evident that validity is given till 31.7.2013, which is subject to review. However, no mat....... + More

Dishonor of Cheque - suit barred by limitation or not - denial of execution of pronote - suit is filed only after 8 years from the date of execution of the pronote - time limitation in case post dated cheque issued - HELD THAT:- The cheques dated 28.04.2008 and 28.04.2009 were not presented for collection and both cheques had lost their validity. Insofar as the cheque dated 28.04.2011 is concerned, the complaint was lodged and referred before Lok Adalat. The last payment made by the defendant on 21.09.2012 and it was duly recorded and the complaint was closed by an order dated 21.09.2012 which was marked as Ex. A8 - Insofar as the receipt of ₹ 10,00,000/-, the execution of pronote and the issuance of cheques are concerned, the defendant, during his cross examination, categorically admitted that the plaintiff entrusted a sum of ͅ....... + More

Dishonor of Cheque - condonation of delay in filing the complaint - trial court failed to grant extension, inspite of being allowed by suo moto petition - HELD THAT:- Even though the trial Court referred the averments made in the complaint, the sworn statement and documents marked on behalf of the complainant, it has not given its consideration to the dates of events which are mentioned above before condoning the delay in presenting the complaint. It is settled position of law that there must be application of mind before taking cognizance of the offence by the Court when there are several dates of events as mentioned - The impugned order does not speak that the Court has taken the said events into consideration before proceeding to pass the impugned order. The matter remanded for fresh consideration by the trial Court keeping in mind the....... + More

Dishonor of Cheque - supply of information about the location of the original case records - it was submitted that while the impugned order was passed, the facts with regard to the trial of the case under Section 138 of the NI Act was not taken into consideration by the writ Court as the complaint was initially instituted before the learned Chief Judicial Magistrate, Paschim Medinipur - HELD THAT:- The order substantially has been passed in favour of the petitioner/appellant to take appropriate steps with regard to the case records pending with the learned Judicial Magistrate, Alipore as it appears that the case records is pending for inquiry and trial before the learned Judicial Magistrate, 2nd Court at Alipore. The report of the learned Chief Judicial Magistrate was communicated to the registry through District Judge, South 24 Parganas ....... + More

Dishonor of Cheque - service of legal notice - presentation of cheque second time - bouncing of cheques on the ground that the same were not-acceptable to the bank on account of its being non- MICR - applicability of prosecution under Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- Admittedly the second bouncing of cheques was not on account of any insufficiency of fund in the bank, nor the same was on account of any act of stop payment etc. from the side of the petitioner. Thus, by the time the second presentation of cheques was made in the bank, the same had become not acceptable by the bank on account of being non-MICR cheques. Accordingly, the petitioner had no role to play in return of cheques upon second presentation, but the same were not acceptable by the bank itself on account of technical reasons. As per proviso (a....... + More

Dishonor of Cheque - it is claimed that cheque issued by way of security and not against any legally payable debt - evidences produced or not - burden to prove - principles of natural justice - HELD THAT:- Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case - From the records of the case, it appears that the P.W. 2 clearly deposed that cash of ₹ 1,00,000/- was handed over to the petition....... + More

Maintainability of this criminal miscellaneous petition - exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. - Matter compromised between parties - HELD THAT:- It is well established and recognised practice that against appellate order confirming the judgment of conviction, the revision petition lies under Section 397 read with Section 401 Cr.P.C. - this Court will not entertain a petition under Section 482 Cr.P.C. where the petitioner has other remedy available under the Code except under exceptional circumstances. After considering earlier judgments of the Hon'ble Supreme Court of India in the case of Madhu Limaye vs. State of Maharashtra [1977 (10) TMI 111 - SUPREME COURT], the Court proceeded to hold that there can be no total ban on the exercise of extraordinary jurisdiction conferred on a High Court under ....... + More

Dishonor of Cheque - service of notice - legally enforceable debt or not - rebuttal of presumption - complainant claims to have sent the legal notice to the accused, but the same was not served upon petitioner - complainant's main grievance is against the Trust - the accused alone was alleged to be the only active Trustee in the said Trust. Service of notice - HELD THAT:- The address of the accused shown in her vakalath in the Trial Court, the cause title in the complaint filed by the complainant before the said Court, and in the memorandum of the criminal appeal before the Sessions Judge's Court and also in the present Criminal Revision Petition before this Court are all the same address, as such, it is established that the complainant issued the notice to the correct address of the accused. The said notice was also tendered at t....... + More

Dishonor of Cheque - Complaint was dismissed hold that, complainant failed to prove the guilt of the accused beyond reasonable doubt - rebuttal of presumption - cheque got executed by exercising force - quantum of amount lent also in dispute - accused has not chosen to step into the witness box to depose regarding his contention - HELD THAT:- It is the settled proposition of law that when the complainant is successful in proving issuance of cheque and its dishonour, unless the accused repays the cheque amount, the offence under Section 138 of N.I. Act is complete and the presumption under Section 139 of N.I. Act arises. In Rangappa v. Sri. Mohan [2010 (5) TMI 391 - SUPREME COURT], the Full Bench of the Hon'ble Apex Court considered its earlier verdict in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) TMI 827 - SUPREME COURT] ....... + More

Dishonor of Cheque - issuance of non-bailable warrant - validity of proceedings under Section 482 Cr.P.C. - HELD THAT:- After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate. Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in [2013 (3) TMI 861 - GUJARAT HIGH COURT] as the facts are similar to this ....... + More

Dishonor of Cheque - funds insufficient - presumption about the existence of legally enforceable debt - rebuttal presumption or not - preponderance of probability - material contradictions in the case of the complainant - HELD THAT:- The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also stated to be July of the year 2012. However, the very same witness in his cross-examination has stated that he lent the money to the accused on 06.08.2012. That means, the complainant was clearly aware the exact date on which the loan is said to have been given by him to the accused. However, for the reasons best known to him, neither ....... + More

Dishonor of Cheque - Filing a case for Suit for recovery of money after initiating action u/s 138 of N.I.Act - Validity of FIR registered - Allegation is that the discount as promised by seller were not provided - matter of contract to be proved by the second respondent for recovering the amount said to be due to him - HELD THAT:- If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner’s business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR w....... + More

Dishonor of Cheque - legality of signature on a money receipt which forms the basis of consideration behind the cheque in question - refusal to to send the document in question to a handwriting expert quite sometime ago - HELD THAT:- The learned revisional Court seems to have erred in holding that the application for seeking the handwriting expert's opinion was filed after the examination of the accused under Section 313 of the Code. In any event, even after examination of the accused under Section 313 of the Code, an accused can seek the opinion of a handwriting expert - If the purported money receipt is not sent to an expert for comparison, it would amount to denying a fair trial to the accused. The application of the petitioners shall appropriately be allowed to send the money receipt to a handwriting expert for comparing the signa....... + More

Dishonor of Cheque - insufficiency of funds - interpretation of statute - Section 138 of the NI Act - imposition of punishment of imprisonment, which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both - whether the learned appellate Court has rightly interfered with the sentence and sentenced to fine only which the accused had already deposited? - HELD THAT:- Here in the instant case, in Section 138 of the NI Act the word "or" has been employed and discretion has been conferred to the Criminal Court sentencing the convicted person for offence under Section 138 of the NI Act. Thus, there is a discretion left with the Criminal Court dealing with complaint under Section 138 of the NI Act either to sentence the accused with imprisonment or to punish the accused with the sentence of ....... + More

Seeking an order to restrain the Respondent from encashing bank guarantees - HELD THAT:- In view of the statement made by Mr. Handoo and the fact that the parties are going to attempt a settlement, Mr. Parag Tripathi, learned Senior Counsel for the Petitioner states that he would not like to press the present petition at this stage and seeks liberty to approach this Court, at a later stage, in case the Respondent initiates steps for the invocation of the bank guarantees. The present petition is dismissed as withdrawn with liberty to the Petitioner as aforesaid.

Dishonor of Cheque - Filing a case for Suit for recovery of money after initiating action u/s 138 of N.I.Act - Validity of FIR registered - Allegation is that the discount as promised by seller were not provided - matter of contract to be proved by the second respondent for recovering the amount said to be due to him - HELD THAT:- If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner’s business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR w....... + More

Dishonor of Cheque - insufficient fund - it was argued that the cheques were issued as security and not in discharge of any debt - crystallization of cause of action on the date of filing of the complaint case under section 138 of the Negotiable Instruments Act, 1881or not - complainant itself was pre-mature or not? HELD THAT:- This court is of the considered view that the learned trial court completely failed to consider that the cause of action for filing a complaint case under Section 138 of the N.I. Act is not counted from the date of dispatch of legal notice, but is counted from expiry of 15 days from the date of service of legal notice. Thus, the timeline for filing the case, even if it is assumed that the legal notice having been sent through registered cover on 04.03.2008 and not return back unserved or returned back for any other....... + More

Seizure of Contraband item - Hashish Oil - prosecution records show that the first accused was arrested, and noting was seized from petitioner - HELD THAT:- The prime accused, from whom the contraband was seized, has already been granted statutory bail. No further purpose can be served by detaining the petitioner in custody - petitioner shall be released on execution of bonds and subject to fulfilment of conditions imposed - petition allowed.

Dishonor of Cheque - insufficiency of funds - no reasonable opportunity was given to the accused to further cross examine P.W.1 and also to lead her evidence - principles of natural justice - HELD THAT:- On 12.11.2014, the request made by the accused' side for an adjournment was rejected and the defence evidence was taken as 'nil' and the arguments of the learned counsel for the complainant was heard, the matter was posted for defendant's arguments on 26.11.2014. On 26.11.2014, the request made by the accused for an adjournment was rejected and defendant's arguments was also taken as 'heard' and the matter was posted for Judgment, to 10.12.2014. However, on 10.12.2014 and the next date of hearing which was 22.12.2014 the Court did not pronounce the Judgment and posting the matter to 31.12.2014, it proceeded to ....... + More

Appointment of a Retired District Judge as the Sole Arbitrator - alteration of cost per unit in the event there is any variation in the tax paid or otherwise - HELD THAT:- This Court prima facie opines that the controversy between the petitioner and the respondent would include the question whether the respondent could have insisted for reduction in the agreed cost per unit consequent to reduction in the GST rate., and the controversy would be within the fold of a dispute contemplated for resolution by arbitration under the agreement dated 31.08.2017. The petitioner has invoked the arbitration Clause in issuing the legal notice dated 16.12.2020 calling upon the respondent to convey willingness for accepting the nomination by the petitioner, but the respondent has failed to signify such acceptance. Smt. H.S.Kamala, retired District Judge, ....... + More