Case Laws - Income Tax

• 2024 (4) TMI 890
  Accrual of income in India - Royalty receipts - income earned from licensing/sale of software and subscription received against cloud services offered by assessee - scope of Indo-USA DTAA - delay of 301 days in filing SLP - HELD THAT:- As following the earlier order passed in SLP (C) [ 2024 (3) TMI 670 - SC ORDER] we condone the delay and dismiss the special leave petitions on the basis of the earlier judgment of this Court in the case of Engineering Analysis Centre of Excellence Private Limited vs. Commissioner of Income Tax and Anr. [ 2021 (3) TMI 138 - SUPREME COURT] Pending application(s), if any, shall also stand disposed of.

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• 2024 (4) TMI 889
  Validity of initial Reopening of assessment u/s 147 - second re-assessment notice u/s 148A scope of new regime of reopening of assessment after introduction of provisions of section 148/148A - ​​​​petitioner participated in the re-assessment proceedings, thus consequently, re-assessment orde was passed by the Assessing Authority - Without any challenge rais ed by the petitioner to the reassessment order and that order not set aside by any authority or Court, the petitioner has been visited with second re-assessment notice for A.Y. 2017-18 and Assessing Authority has invoked Section 148-A of the Act - HELD THAT:- As it....... + More

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• 2024 (4) TMI 888
  Addition of unsecured loans / bogus advances against sales - unexplained cash credit u/s 68 - CIT(A) deleted addition - HELD THAT:- We find that the CIT(A) had categorically observed that the assessee had produced the books of accounts along with day to day purchase, transactions of sales in the succeeding year where sales to these two parties were part of the total sales and declared in the VAT returns which has been accepted. Further the income tax returns of Asst Year 2016-17 also reflected the total sales made by the assessee which admittedly included the sales made to these two parties. The stock registers maintained by the assessee cle....... + More

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• 2024 (4) TMI 887
  Deduction u/s 80P(2)(d) - interest received from the investments with the cooperative bank - HELD THAT:- As considered the order of the Ld. CIT(A) for the A.Y. 2017-18. We find that identical grievance was raised before the Ld. CIT(A) on identical set of facts and after considering the facts and the submissions and drawing support from various judicial decisions, the Ld. CIT(A) allowed the claim. It is true that revenue has not filed any appeal against the order of the Ld. CIT(A) which means the issue has attained finality in the previous assessment year. On finding parity of facts, we do not find any reason why the similar claim of deductio....... + More

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• 2024 (4) TMI 886
  Reopening of assessment u/s 147 - non independent application of mind by AO - Scope of borrowed satisfaction - information received from Asst. DIT-(Investigation), Unit 2(1), Kolkata, AO was informed that large value of cash was deposited into several bank accounts maintained with ICICI Bank which were immediately transferred to other bank accounts - HELD THAT:- Entire reopening is based on the assumption that assessee has been benefited by the impugned / alleged colorable transactions but without any backing of any demonstrative evidences to show that the assessee has purchased cheque from Wheelers Developers Pvt Ltd., by paying cash to it........ + More

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• 2024 (4) TMI 885
  Assessment u/s 153A - Deemed dividend addition u/s 2(22)(e) - incriminating material found in the course of search or not? - HELD THAT:- The issue is no longer res integra. The judgment rendered by the Hon ble Apex Court in the case of Pr.CIT vs. Abhisar Buildwell (P.) Ltd. [ 2023 (4) TMI 1056 - SUPREME COURT] would squarely apply to the facts of the case and thus the scope of assessment under Section 153A is restricted to the incriminating material found in the course of search of the assessee owing to the fact that such assessment stood concluded / completed and thus do not get abated by operation of law. Guided by the principles laid down....... + More

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• 2024 (4) TMI 884
  TDS u/s 194H - Commission paid to Primary Agriculture Cooperative Society (PACS) - Non deduction of TDS - HELD THAT:- Since assessee corporation is paying commission to PACS which are working as agents, we are inclined to hold that commission paid by assessee to PACS is liable for deduction of tax at source u/s 194H of the Act. We, however, notice that assessee did not get proper opportunity of hearing before the assessing officer and even before ld. CIT(A). We also note that the assessing officer has calculated the TDS at the maximum rate of 20% on account of non-availability of PAN even though all PACS are having bank accounts. We also not....... + More

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• 2024 (4) TMI 883
  Validity of assessment order u/s. 147 r.w.s 144 - AO proceeded to complete the assessment by treating the difference amount between the SRO value and the actual sale consideration paid as income from other sources - HELD THAT:- AO ought to have considered the submissions, explanations and the evidences submitted before him while making the addition. It is also pertinent to mention here that during the assessment proceedings, if at all the AO is not convinced with the submissions made by the assessee with regard to the valuation of the property, AO is supposed to refer the matter to the Valuation Cell to obtained the market value of the prope....... + More

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• 2024 (4) TMI 882
  Estimation of income - bogus purchases - CIT(A) confirmed disallowance/ addition to the extent of 12.5% - HELD THAT:- As apparent that assessee has purchased material from party A and procured bogus bills of the same material from party B. In this circumstance all the judicial precedents cited before us shows that only profit element embedded therein should be added. Therefore, AR has submitted that the profit element in case of assessee in Steel and Pipe business is merely 2 to 3 %. Therefore, over and above the normal profit earned by the assessee, there are certain other expenses and credit of the taxes and duties which is required to be ....... + More

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• 2024 (4) TMI 881
  Denial of deduction u/s. 10(23C) - Form 10B essential for claiming exemption was not furnished - intimation u/s. 143(1) - no exemption u/s. 11 of the Act was claimed rather the assessee had claimed exemption u/s. 10(23C)(iv) - as argued while filing the return, the above exemption was wrongly claimed u/s. 10(23C) of the Act instead of Section 11 in the return of income and as issue was debatable in nature and did not fall within the purview of prima-facie adjustment , as envisaged u/s. 143(1) - According to the Ld.AR, the claim of exemption u/s. 11 of the Act was maintainable and the Audit Report in Form 10B necessary for claiming this deduc....... + More

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• 2024 (4) TMI 880
  Rectification u/s 154 - Characterization of receipts - Exemption of interest on enhanced compensation from tax denied u/s. 10(37) - HELD THAT:- Sections 56(2)(viii) and 57(iv) came on the statute w.e.f. 01.04.2010, i.e., AY 2010-11 onwards. The decision in Ghanshyam (HUF) [ 2009 (7) TMI 12 - SUPREME COURT] is for AY 1999-00. The said decision by the Hon'ble Apex Court thus has no bearing on the said provisions, invoked by the AO in bringing the impugned interest to tax. Even as observed by the Bench during hearing, it is only where a Constitutional Court declares the same as ultra vires the Act (i.e., on a view that interest u/s. 28 of L....... + More

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• 2024 (4) TMI 879
  Reopening of assessment u/s 147 - absence of valid approval to be obtained u/s 151 - who is competent authority for approval in this case? - notice issued beyond period of four years - Principal Chief Commissioner of Income Tax/ Chief Commissioner of Income Tax Principal Commissioner of Income Tax/ Commissioner of Income Tax OR Additional Commissioner - HELD THAT:- The erstwhile provisions of Section 151 postulates permission of Pr.CCIT/CCIT/Pr.CIT/CIT before issuance of notice u/s 148 of the Act after the lapse of 4 years. Ostensibly, the re-assessment proceedings u/s 147 r.w. Section 148 in the instant case has been initiated without valid....... + More

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• 2024 (4) TMI 878
  Revision u/s 263 - taxability of interest received by the Assessee on the enhanced compensation u/s 28 of the Land Acquisition Act - scope of debatable issue - AO while passing the order u/s 154 of the Act by accepting one of the views, deleted the addition - HELD THAT:- As the taxability of interest received by the Assessee on the enhanced compensation u/s 28 of the Land Acquisition Act is a debatable issue, wherein two views are plausible. The A.O. while passing the order u/s 154 of the Act by accepting one of the views, deleted the addition. It is well settled law that when two views are plausible and the issue is also a debatable one, th....... + More

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• 2024 (4) TMI 877
  Deduction u/s 80P2(a)(i) - allowance of interest on deposits earned by the cooperative society from fixed deposits in various bank accounts - HELD THAT:- On similar set of facts, this Tribunal in the case of The Kakateeya Mutually Aided Thrift and Credit Coop Society Ltd. [ 2023 (9) TMI 211 - ITAT VISAKHAPATNAM] held in favour of the assessee, relying on the decision of Vavveru Co-operative Rural Bank Ltd [ 2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] as held assessee has invested surplus funds out of the activities carried out as per the provisions of section 80P(2)(a) of the Act. We therefore are of the view that interest income should be....... + More

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• 2024 (4) TMI 840
  Validity of Faceless assessment u/s 144 r.w.s.144B - Gross non-compliance with the procedure contemplated u/s 144B - HELD THAT:- Whether the proceeding is traceable to Section 144B(1)(xi) i.e., show cause notice or 144B(1)(xvi) of the Act i.e., draft assessment order, it was submitted that this must be treated as a proceeding u/s 144(2)(1)(xi). Assuming it to be so, the absence of any proceeding u/s 144B(1)(xvi) of the Act, i.e., a draft assessment order having been passed the impugned order of assessment cannot be sustained. It may be relevant to note that this Court in [ 2023 (9) TMI 1460 - MADRAS HIGH COURT] had held that it is impermissi....... + More

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• 2024 (4) TMI 839
  Validity of reopening of assessment u/s 147 - shorter period to reply to notice - effectively only six working days were given to reply and hence Petitioner was unable to file a reply - as argued that if Petitioner is given an opportunity to reply to the notice u/s 148A(b) she is confident that she will be able to satisfy the AO that the notice u/s 148A(b) will have to be dropped - HELD THAT:- Considering the facts and circumstances of the case that Petitioner is a Public Trust and running a school, in our view, Petitioner should be given an opportunity to reply to the notice. In the circumstances, without expressing any opinion on the merit....... + More

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• 2024 (4) TMI 838
  Penalty u/s 271(1)(c) - charge was not made specific - concealing income or furnishing inaccurate particulars - return of income was filed only in response to notice u/s 148 - as alleged assessee has concealed particulars of income by not filing the return of income and provided inaccurate particulars during the assessment by not proving the authenticity of the expenses and not disclosing the income - HELD THAT:- No doubt the assessee has submitted before us many judicial precedents wherein where there is an ad hoc disallowance of the expenditure; it is held that penalty cannot be levied. Though this cannot be a universal principle. We find ....... + More

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• 2024 (4) TMI 837
  Reopening of assessment v/s assessment u/s 153C - reliance placed by the Ld. AO on the seized material - AR argued that since th AO has acted based on the seized documents in the premises of the searched party, the assessment ought to have been framed u/s. 153C - HELD THAT:- In the instant case, AO has relied upon the agreement of sale (unregistered) dated 6/1/2016 which was seized by the search party. Relying on such information and the seized material, the Ld.AO initiated the proceedings u/s. 147 of the Act. Even though in the order of the Ld. AO, in para 5, the Ld. AO has mentioned about the material available on record for a belief that ....... + More

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• 2024 (4) TMI 836
  Addition u/s 68 - enhancement of income u/s 56(2)(viib) - funds received in the form of share premium through undisclosed sources - identity of investors and creditworthiness of the investors and genuineness of the transaction not proved - CIT enhancing the income of the assessee u/s 56 (2)(viib) - HELD THAT:- As decided in DAYALU IRON STEEL PVT. LTD [ 2022 (7) TMI 625 - ITAT DELHI] he authorities below without verifying the veracity of the documents from the publically available data on the web site of MCA IT Department. Once the assessee provided the names, addresses and Pan, particulars and ROC details of the investors. The Ld. A.O ought ....... + More

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• 2024 (4) TMI 835
  Reopening of assessment of assessee trust - denial of exemption u/s. 11 on the ground of Trust as violates provisions of Sec. 13(1)(c) - failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of assessment in respect of rental income received on let out of premise which is clearly evident from Form No.10B filed by the assessee for all assessment years, where, the assessee has not disclosed the details with regard to income or properties of the Trust was made or continued to be made available for the use of any such persons during the previous year referred to u/s. 13(3) of the Act. HELD TH....... + More

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• 2024 (4) TMI 834
  Disallowance of set off - sale of equity shares (STT) - short-term capital gains (STCG) on sale of derivatives and short-term capital loss (STCL) - difference in rate of taxation - determining the tax liability without setting off of STCG loss taxable at the rate of 15% against the STCG on sale of derivatives taxable at the rate of 30% u/s 70(2) - HELD THAT:- In the case of VEMF-A, LP [ 2017 (4) TMI 721 - ITAT MUMBAI] wherein on identical issue and similar fact the ITAT has decided the issue in favour of the assessee. It is clearly held that under the provisions of section 70(2), STCL arising from any asset can be set off against STCG arisin....... + More

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• 2024 (4) TMI 808
  Assessment barred by limitation - delay of 340 days in filing the present special leave petition - HC [ 2023 (1) TMI 1368 - CALCUTTA HIGH COURT] held provisions of Section 153(3)(ii) of the Act are not attracted in the facts and circumstances of the case on hand - HELD THAT:- We are not satisfied with the reasons given for the delay. Accordingly, the application for condonation of delay, as well as, the special leave petition are dismissed.

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• 2024 (4) TMI 807
  Condonation of delay - gross delay of 597 days in filing the special leave petition - Exemption u/s 11 allowed on activity of the assessee of letting out gallery frequently for a price as merely because a small percentage of the income of the Assessee is from letting out of its premises and sale of paintings, the essential activity of the Assessee would not cease to be charitable for the purposes of Sections 11 and 12 HELD THAT:- The explanation offered is not to our satisfaction as no sufficient cause to condone the delay has been made out. Hence, the application seeking condonation of delay is dismissed. Consequently, the Special Leave Pet....... + More

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• 2024 (4) TMI 806
  Allowable expenditure of Education Cess - HELD THAT:- As respondent very fairly states that in view of the subsequent amendments in the Income Tax Act, 1961, Education Cess cannot be allowed as an expenditure. In view of the statement made, the impugned judgment is set aside and the appeal is allowed, holding that the Education Cess cannot be allowed as an expenditure. However, the assessing officer while implementing and giving effect to this order, will examine the question of the quantum/amount of Education Cess , if any, claimed by the respondent SESA Goa Ltd., as an expenditure in the returns or in the proceedings.

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• 2024 (4) TMI 805
  Waiver of interest u/s 234A, 234B and 234C - marginal delay in filing the returns - HELD THAT:- The stand of the petitioner that the petitioner was entitled for waiver of interest u/s 234A for the AY 2008-2009 and 2009-2010 on similar for the AY 2005-2006 and 2007-2008 deserves to be accepted, as there is only marginal delay in filing the returns after the Audit Report was received by the petitioner from the Office of Joint Director of Cooperative Audit on 22.03.2011 for the AY 2008-2009 and on 31.01.2012 for the AY 2009-2010. The returns for these years were filed by the petitioner on 31.05.2011 and 02.04.2012, respectively. Therefore, to t....... + More

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Case Laws - GST

• 2024 (4) TMI 856
  Difference in turnover declared in GSTR 3B on comparison with the GSTR 1 statement - reversal of the Input Tax Credit (ITC) - HELD THAT:- The respondent recognised the fact that the petitioner paid amounts due with regard to the difference between GSTR 1 and 3B on 09.01.2023. In spite of noticing the same, the respondent recorded at page no.23 of the typed set that the taxable person did not pay the tax dues within 15 days of the receipt of the notice dated 17.03.2023. This conclusion is contrary to the documents on record. As regards the reversal of ITC in respect of purchases from Sri Vela Hardware and Paints, it is unclear as to the basis....... + More

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• 2024 (4) TMI 855
  Cancellation of the petitioner's GST registration - petitioner had not filed returns for a continuous period of six months - HELD THAT:- Section 29(2)(c) of applicable GST enactments, as its stood at the relevant point of time, enabled cancellation of registration for non filing of returns by a registered person for not less than a continuous period of six months. The petitioner has placed on record proof of filing of GSTR 1 and 3B returns for August and September 2022-23. Such returns were filed in February 2023. The impugned order of cancellation was issued on 15.03.2023, which is subsequent thereto. By the time of cancellation, on acc....... + More

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• 2024 (4) TMI 854
  Power of condone the delay beyond four months - pre-deposit has been done after the period was over - HELD THAT:- The period of four months has to be calculated in terms of the General Clauses Act. Once the appeal has been submitted on 30.09.2023 in the order passed on 30.05.2023, if calculated mathematically it would be less than four months. The petitioner has also given out other reasons for not filing the appeal within the period of three months. In the opinion of this Court the delay ought to have been condoned, which was within the powers of the appellate authority upto one month. The matter remanded back to the appellate authority to ....... + More

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• 2024 (4) TMI 853
  Violation of principles of natural justice - the issues in the impugned order not duly considered - Short payment of GST on import of services from a subsidiary company - second proviso to Rule 28 of the Central Goods and Services Tax Rules, 2017 - non payment of GST on turnover from export of services - export invoice of the petitioner was raised in US dollars - mismatch between the GSTR 1 and 3B - mismatch occurred on account of invoices which were cancelled because services were not provided. Short payment of GST on import of services from a subsidiary company - reliance placed on second proviso to Rule 28 of the Central Goods and Service....... + More

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• 2024 (4) TMI 852
  Release of seized goods - contention of the appellants is that the present appellants are distinct and separate entity and has got nothing to do with the prayer made by the other writ petitioners, namely, Biswas Timber Mart and Others - HELD THAT:- In the preamble portion of the order the facts have been recorded in which a finding has been recorded that the present appellants failed to differentiate the stock of timber belonging to them out of the total stock of timber in the business premises; they failed to differentiate the stock of timber belonging to Biswas Timber Mart (one of the petitioners in WPA 17991 of 2023) out of the total stoc....... + More

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• 2024 (4) TMI 851
  Scope and Interpretation of Contract - Seeking reimbursement of the GST paid by them for the procurement of raw materials, intermediary components etc. and the bought-out items dispatched directly from the sub-vendors to the work site - barred under clause 31 of the General Conditions of Contract or not - Doctrine of Merger - HELD THAT:- The effect of deletion of the latter portion in clause 10.7 of the GCC shall be that the adjustment of GST component shall no longer be restricted to direct transactions between the Employer and the Contractor. The writ Court rightly held that clause 31 of the GCC cannot be read in a manner so as to oblitera....... + More

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• 2024 (4) TMI 850
  Seeking cancellation of pre-arrest bail granted to the respondent - evasion of GST revenue - running fake firms and generating fake E-way bills - HELD THAT:- Hon ble Apex Court in THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER ANR. ETC. [ 2023 (7) TMI 1008 - SUPREME COURT] observed that Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Ac....... + More

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• 2024 (4) TMI 849
  Validity of impugned order u/s 73 of the CGST Act - appealable order under the CGST Act or not - fraud of criminal nature or not - HELD THAT:- This Court fails to understand as to how the nature of allegation of fraud which is fully criminal in nature can be taken cognizance by the writ Court in exercise of constitutional writ jurisdiction under Article 226 of the Constitution of India while the impugned order is the adjudication order under Section 73 of the CGST Act which is an appellable order under the statute and adjudication proceeding has been initiated in accordance with law and the petitioner has participated in the proceeding and t....... + More

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• 2024 (4) TMI 848
  Constitutional Validity of Sections 2, 9, 12 and 18 of the Constitution (101 st Amendment) Act, 2016 violating the basic structure of the Constitution of India - grounds raised are based on the constitution of a Goods and Services Tax Council (GST Council), on whose recommendations the Parliament is alleged to be acting, which, according to the writ petitioner, is an abdication of the legislative functions - HELD THAT:- The Hon ble Supreme Court in AYAAUBKHAN NOORKHAN PATHAN VERSUS THE STATE OF MAHARASHTRA OTHERS [ 2013 (8) TMI 563 - SUPREME COURT] has clearly held that a stranger cannot be permitted to meddle in any legal proceeding unless ....... + More

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• 2024 (4) TMI 847
  Validity of demand of GST raised by State authorities - For the same cause of action, the Central Authority has already initiated action - The State authorities argue that there was a lack of information provided by the petitioner regarding the Order-in-Original passed by respondent No. 4. They claim that timely information was not provided before the issuance of the impugned order. - HELD THAT:- Considering the provisions of Section 6 of CGST Act, what is apparently evident is that once when the proceedings have already been drawn and finalized on the same set of facts and issue, there cannot be subsequent proceedings again drawn - Undisput....... + More

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• 2024 (4) TMI 846
  Classification of services - Licensing Services for The Right to Broadcast and Show Original Films, Sound Recordings, Radio and Television Programmes Etc., classifiable under SAC 997332 or not - Correctness of impugned order - confusion in the issue. Appellant sought advance ruling on the services relating to Distribution of films to Theatres. But contrary to this, they have claimed at para IV (e) of Grounds of Appeal that the Appellant had never sought classification of the transaction between the Distributor and the Exhibitor. HELD THAT:- The Appellant has contradicted and confused the issue. Under the circumstances, analysis of clauses of....... + More

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• 2024 (4) TMI 845
  SEZ unit - requirement to pay tax under reverse charge mechanism on specified services - N/N. 10/2017-IT(Rate) dated 28.6.2017 as amended from time to time - HELD THAT:- Under N/N. 37/2017-CT, a unit in DTA can supply services to a unit in SEZ without payment of IGST subject to furnishing of LUT to the jurisdictional Commissioner. On a similar issue, wherein clarification was sought , as to whether the SEZ unit is liable to pay GST in respect of legal services, sponsorship services etc received by an SEZ unit in IFSC, Gandhinagar, from a unit in DTA, which are chargeable to GST under RCM, Tax Research Unit, CBIC, New Delhi, clarified a unit ....... + More

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• 2024 (4) TMI 844
  SEZ unit - liability pay tax under reverse charge mechanism on services received from advocate by virtue of Notification No. 10/2017-Integrated tax Rate (as amended time to time) - HELD THAT:- Under N/N. 37/2017-CT, a unit in DTA can supply services to a unit in SEZ without payment of IGST subject to furnishing of LUT to the jurisdictional Commissioner. On a similar issue, wherein clarification was sought, as to whether the SEZ unit is liable to pay GST in respect of legal services, sponsorship services etc received by an SEZ unit in IFSC, Gandhinagar, from a unit in DTA, which are chargeable to GST under RCM, Tax Research Unit, CBIC, New De....... + More

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• 2024 (4) TMI 843
  Classification of services - activity of insulating of bare M.S. Pipes provided by the customers on job work basis by using PU Foam and PE Film/HDPE jackets owned by the applicant - classifiable under clause (iv) of Sr. No. 26 or under Sr. No. 27 of notification No. 11/2017-CT (Rate) dated 28.6.2017 or not - HELD THAT:- The CBIC has already clarified the issue with its Circular No. 126/45/2019-GST dated 22.11.2019. Consequent to insertion of entry 26(id) under heading 9988 of notification No. 11/201 7-CT (Rate), ibid, which prescribes 12% GST for all services by way of job work, doubts were raised that this insertion may lead to a situation ....... + More

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• 2024 (4) TMI 842
  Exemption from GST - exempt supplies or not - contract (excluding works contract service or other composite supplies involving supply of any goods) - supply of Teachers and Lecturers to BBMP schools and colleges on outsourcing basis - bills can be raised to BBMP without CGST and SGST - taxability under GST for supply of teachers/Lecturers to the schools of BBMP on outsourced basis - HELD THAT:- The impugned services are being supplied to the BBMP, a division in the Bruhat Bengaluru Mahanagara Palike which is Bangalore City Corporation, established under Karnataka Municipal Act 1976 and now working under The Bruhat Bengaluru Mahanagara Palike....... + More

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• 2024 (4) TMI 841
  Exemption from GST - supply of services (subscription of Clinical Key) to the All India Institute of Medical Sciences (AIIMS) - Governmental Authority or not - Seeking the rate of tax/ exemption on the supplies under Clinical Key subscription product supplied to specified customers (educational institutions) - taxability of supply of services (subscription of Clinical Key) to other educational institutions. Whether the supply of services (subscription of Clinical Key) to the All India Institute of Medical Sciences (AIIMS) is exempt from GST under Entry No. 69 (b) (v) of the Notification No. 9/2017-IT (Rate) dated 28 June 2017? - HELD THAT:- ....... + More

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• 2024 (4) TMI 811
  Cancellation of registration of petitioner - time limitation - order for cancellation of registration has been passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [ 2023 (8) TMI 1262 - ALLAHABAD HIGH COURT] , wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice. The orders imp....... + More

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• 2024 (4) TMI 810
  Cancellation of registration of petitioner - order passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [ 2023 (8) TMI 1262 - ALLAHABAD HIGH COURT] , wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice. The orders impugned herein are liable to be set aside. Accordingly, the or....... + More

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• 2024 (4) TMI 809
  Eligibility for concessional rate of GST in terms of Sr. No. 201A of Notification No. 01/2017-CGST (Rate) - Biomass Fired (Steam) Boilers and Agro Waste Thermic Fluid Heaters are Waste to Energy plant or not - HELD THAT:- To get the benefit of lower rate of GST, it was the Biomass / Agro Boilers as well as the Agro Waste Fluid Thermic Heaters produced by the petitioner does not fall under any category from (a) to (h). The claim of the petitioner is that it falls in the category of Waste to Energy Plant / devices is also not considered by the Appellate Authority on the ground of Waste to Energy Plant, can be considered only the product, which....... + More

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• 2024 (4) TMI 781
  Forged tax invoices - Grant of Regular Bail - non-existent ghost business entities - commission of offence u/s 132(1)(b)(c) (l) of the OGST Act - wrongfully availing Input Tax Credit (ITC) without physical receipt and supply of goods - Tests for grant or refusal of bail - right to speedy trial - Violation Of fundamental right as guaranteed under Article 21 of the Constitution of India - HELD THAT:- Keeping in view the core values of personal liberty, when the present case is tested, it appears that there is allegation of wrongfully availing Input Tax Credit of Rs. 316 crores against the petitioners and others. Out of the eight accused person....... + More

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Case Laws - Customs

• 2024 (4) TMI 876
  Smuggling - Gold - suppression of bill for the purchase of gold despite its seizure from his bag - retraction of statement given under section 108 of Customs Act - reliability of the statements - accused admitted the commission of offence or not - validity of judgment of acquittal of the accused - it was held by High Court that The prosecution had not examined any witness or produced any document to show such previous conduct by the accused, and on the other hand, the evidence of DW1 indicates that the accused had been coming down to Kerala for business purposes, which evidence could not be dented by the prosecution during cross-examination........ + More

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• 2024 (4) TMI 875
  Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - gold smuggled in a consignment of medical equipment, Air Nebulizer - violation of Regulations 10(a), 10(d), 10(m) and 10(n) of CBLR. Violation of of Regulation 10(a) - failure to check whether third person Shri Ravindra Sonar (from whom CB accepted the documents) is an authorised representative of the importer firm M/s Albela Traders and has power to authorize the appellants CB for filing the documents or not - HELD THAT:- In the absence of any document to prove the claim of that the appellants had acted in an unauthorized manner in mis-declaration of t....... + More

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• 2024 (4) TMI 874
  Valuation of exported CD ROMS - Import of goods by availing excess export promotion benefits i.e. DEBP/DEEC Credits - intention of fraudulently obtaining excess DEBP/DEEC Credits, which were subsequently utilized for duty free import thereby causing loss of the Customs Duty - mis-declaration of value - suppression of facts - whether the duty foregone amount is liable to recovered from the respondents? - HELD THAT:- The transaction value declared is fair and the exports are genuine, the second allegation that respondents are not eligible for the DEPB entitlements, automatically loses its sanctity. Since the issue is no longer res integra, the....... + More

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• 2024 (4) TMI 873
  Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already th....... + More

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• 2024 (4) TMI 872
  Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already th....... + More

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• 2024 (4) TMI 833
  Infraction of the principle of natural justice - demand passed without considering the written submissions of the petitioner - SCN was kept in call book for 14 years - HELD THAT:- No mistake, much less any mistake apparent on record was pointed out by the Learned Advocate for the applicant inasmuch as this Court has given the cogent reasons while allowing the Special Civil Application and at that point of time it was not pointed out by the applicant that the show cause notice was never transferred to the call book. This Court has perused the documents on record wherein it is revealed that it is undisputed fact that the issue involved in the ....... + More

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• 2024 (4) TMI 832
  Misdeclaration of classification - confiscation - Penalty u/s 112 (a) - children building/constructable robot toys in CKD condition with individual box packing and are electronic toys - drones - Teaching Aid's in schools - classified under CTH-90230010 - Seeking for re- export the goods to Qatar - huge demurrage charges and goods - HELD THAT:- In the present case, the appellant has produced sufficient evidence to substantiate that the goods are imported for the purpose of demonstration in schools. Hence, the goods imported from Sl. No. 1 to 3 may not be classifiable as toys under CTH 9503 as held by the Adjudication Authority and the App....... + More

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• 2024 (4) TMI 831
  Levy of penalty for abetment - Fraudulent export of substandard goods by description in the shipping bills filed by the exporter - Value for undue DEPB benefit - Subletting CHA license - Liability of a Customs Broker - license used for monetary consideration - signing of blank shipping bills and allowing license to be used - consignments of inferior quality of fabrics after mis-declaring the goods as Ladies nightwear - value rejected u/s 14 of the Customs Act - Penalty - Misrepresentation as the employees of the CHA - HELD THAT:- The appellants in the present appeals do not dispute any of the facts that have been part of the impugned order e....... + More

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• 2024 (4) TMI 830
  Classification of imported goods - Imports aluminium shelving for Mushroom - Benefit of exemption - appellant classifying the said goods under CTH 84369900 at nil rate of duty - Department proposed the goods to be classified under CTH 76109010 - Penalty - Whether the goods imported can be called as machine or mechanical appliances covered under chapter 84 or are more precisely specifically classifiable as the aluminum structures of chapter 76 - HELD THAT:- From the general rule of interpretation, as discussed, it is clear that the goods have to be classified to the more appropriate category instead of being covered under the generic category....... + More

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• 2024 (4) TMI 829
  Revocation of the Customs Broker Licence - forfeiture of the full amount of security deposit - confiscation - Penalty in exercise of powers vested under Regulation 18 of the Customs Brokers Licensing Regulations, 2018 (CBLR) - Goods imported being edible oil - HELD THAT:- In the instant case, the goods imported being edible oil were brought into India in Bangladeshi tankers having been given permission for entry by the Proper Officer of Customs. It is on record that samples of imported goods were drawn, goods assessed and duty paid thereon. The imported oil was transferred to India tankers, which were taken up for verification of the nature ....... + More

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• 2024 (4) TMI 794
  Adjudication of SCN after 17 years - Validity of categorizing the petitioner as an importer of barge that drifted due to bad weather - The same was being taken by a tug owned by one MLC Marine Pvt. Ltd. from Singapore to Baharin sometime in the year 2006. - HELD THAT:- We are of the prima facie opinion that for more than one reason the impugned show cause notice ought not to proceed; firstly prima facie there appears to be grave doubt as to whether the respondents would have jurisdiction to issue the show cause notice in question by categorizing the petitioner to be an importer. Secondly and more significantly, we find that the show cause no....... + More

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• 2024 (4) TMI 793
  Finalization of the provisional assessment - return the Bank Guarantees furnished at the time of provisional assessment - Import of alkalized cocoa powder from Indonesia - HELD THAT:- We may observe that although stand has been taken by the respondents in the reply affidavit, however, a deficit memo of any nature was furnished to the petitioners. The internal processes which have been undertaken by respondent no. 3 cannot take indefinite time. They are required to be concluded as expeditiously as possible and more particularly when the petitioner has complied all the conditions in regard to the provisional release of the goods. Thus, in the ....... + More

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• 2024 (4) TMI 792
  Remission of duty - Application of Section 23 - Whether the appellant are eligible for remission of duties in respect of duty free goods brought into SEZ and the same were destroyed in fire or otherwise - HELD THAT:- We find that subsequent to the passing of impugned order by the Adjudicating authority, in number of cases, it has been held that if the goods are destroyed in SEZ the duty involved on such destroyed goods can be remitted under the Customs Act. In the case of ONGC Petro Additions Ltd. Vs. CC- [ 2023 (12) TMI 530 - CESTAT AHMEDABAD] , this Tribunal on the same legal issue that whether the goods destroyed in SEZ is eligible for re....... + More

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• 2024 (4) TMI 791
  Levy of penalty u/s 114A - Classification of imported goods - duty demand - suppression of facts - import of Shell Flavex Oil 595 B/H - item being Plasticizer - classified by all Custom Houses under CTH 38122090 but DRI, Gandhidham classified under CTH 27079900 - HELD THAT:- We find that the case relates to classification of the imported goods, the appellant have classified the goods under CTH 38122090 on a bona fide belief that the imported goods were Plasticizer and the same were used as Plasticizer in the manufacture of the tyre. The compound Plasticizer is clearly mentioned in the tariff entry against CTH 38122090. Therefore, the bona fi....... + More

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• 2024 (4) TMI 732
  Penalty imposed on the appellant being the employee of the Shipping Line u/s 114AA - manipulation in the document - statement recorded u/s 108, wrongly stated that the supplier of the goods in the subject container was Jubilee Middle East General Trading LLC, Dubai - HELD THAT:- From the RUDs placed on record by the learned AR, we find the Bill of Lading dated 6.11.2014 the supplier has been mentioned as M/s. Jubilee Middle East General Trading LLC Dubai, UAE. Therefore, the appellant is not wrong in saying that the shipper/supplier is M/s. Jubilee Middle East General Trading LLC. Hence, no fault can be attributed on the appellant. The provi....... + More

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• 2024 (4) TMI 731
  Penalty under Rule 18 (1) of CBLR 2018 on customs broker - exporter availed undue benefit under Merchandise Exports from India Scheme (MEIS) in the export of safety matches - misclassifying the same under CTH 36050090 as against CTH 36050010 - facilitated the filing of documents relating to export on behalf of their exporter client - violation of Regulations 10(d) 10 (e) ibid - HELD THAT:- In the case of M/s. Max Miller Agencies [ 2024 (1) TMI 1220 - CESTAT CHENNAI] this Bench has considered an almost similar issue and after considering several judicial pronouncements has found it proper to delete penalty imposed for violations of regulation....... + More

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• 2024 (4) TMI 730
  Period of limitation for filing refund claim of SAD - Period start from the date of payment Or from the date of sale of the goods - HELD THAT:- The ratio laid down in the case of M/s. Abhishek Marketing [ 2024 (3) TMI 1050 - CESTAT KOLKATA] wherein the Tribunal has held that the one-year period for filing the refund claim should start from the date of payment of additional customs duty, is squarely applicable to the factual matrix of the present appeals. I observe that the judgements of the Hon ble Delhi High Court cited by the appellant pertain to refund claims filed prior to the amendment carried out vide Notification No. 93/2008-Cus. date....... + More

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• 2024 (4) TMI 729
  Benefit of exemption from Customs Duty - Validity Of Original re-assessment orders - Modification of self assessment made by the appellant claiming the benefit of exemption under Sl. No. 29 and 30 of Notification No.24/2005-Customs as amended - Classification of impugned goods viz. Open Cells under CTH 85.24 and in classification of associated parts of Open Cells under CTH 85.29 - whether the imported goods is the Liquid Crystal Device or not - HELD THAT:- On careful reading of the impugned order passed by the learned Commissioner of Customs (Appeals), it transpires that he has given a specific finding that there is no dispute in the classif....... + More

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• 2024 (4) TMI 704
  Territorial jurisdiction of Court - Confiscation of gold - levy of penalty on the petitioner - burden lies on the respondents to establish that the seized gold was smuggled in nature and there was violation of the Customs Act, 1962 by the petitioner or not - seeking release of seized gold - HELD THAT:- This Court observes that the preliminary objection of the respondent regarding the territorial jurisdiction of this Court deserves acceptance and the same is hereby accepted, because after a perusal of the record as a whole, it is clear that the entire proceedings, including confiscation, recording of the statements, hearing of the case etc. w....... + More

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• 2024 (4) TMI 703
  Jurisdiction - DRI - proper officer to issue SCN - power of assessment under Section 17 - When Section 28(11) of Customs Act, 1962, envisages that all persons appointed as officers of Customs under sub-Section (1) of Section 4 before the 6th day of July 2011, shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purpose of this Section, whether CESTAT is correct in disputing/questioning the jurisdiction of the DRI to issue show-cause notice? HELD THAT:- The issue raised in this appeal had already been dealt with by this Court in THE COM....... + More

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Case Laws - Corporate

• 2024 (4) TMI 871
  Violation of Section 233 of the Companies Act, 2013 - requirement of holding at least ninety percent of the total numbers of shares, for approval of scheme of amalgamation - non-application of mind - HELD THAT:- In the present case it is evident that the trial Judge has taken cognizance without any application of judicial mind. The order taking cognizance in this case has been only a formality - There is absolutely no application of mind. Cognizance has been taken casually without any prima facie findings. There is also no reason for the petitioner to commit fraud by making a false statement as the petitioner has the option to take recourse ....... + More

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• 2024 (4) TMI 728
  Professional Misconduct by CA - Failure to disclose a material fact known to him which is not disclosed in a financial statement, but disclosure of which is necessary in making such financial statement where the statutory auditors are concerned with that financial statement in a professional capacity - Failure to report a material misstatement known to him to appear in a financial statement with which EP is concerned in a professional capacity - Failure to exercise due diligence and being grossly negligent in the conduct of professional duties - Failure to obtain sufficient information which is necessary for the expression of an opinion, or ....... + More

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• 2024 (4) TMI 635
  Seeking directions against the respondent no. 1/National Housing Bank (NHB) to consider and decide upon the petitioner s representation dated 18th August, 2023 - seeking direction to call upon respondent no. 2, i.e., India Bulls Housing Finance Limited (IBHFL) to produce the responses and relevant documents, disclosing the actions taken by them in respect of the query dated 6th April, 2023 addressed by the petitioner. HELD THAT:- The petitioner has been in litigation with IBREL and seeks to collect information and documents through the process of the present petition, so as to use the same to file intervention application before NCLAT, New D....... + More

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• 2024 (4) TMI 480
  Oppression and Mismanagement - Validity of the Lease Deed - Doctrine of Res Sub-Judice - Appellants argued that the Tribunal overstepped its jurisdiction by setting aside the lease deed while its validity was under scrutiny in a civil court - HELD THAT:- The bedrock of this case is the lease deed dated 26.08.2019, executed pursuant to the resolution dated 23.08.2019 which is not only contrary to the provisions of Section 188(1) of the Act r/w Rule 15 of the companies (Meeting of board and its powers) Rules 2014 but also clause 36(ii) of the AoA as on 23.08.2019, which provides that the board of directors shall not, without consent of 100% me....... + More

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• 2024 (4) TMI 479
  Rightful owners of 4000 shares or not - Exercise of jurisdiction under Section 8 of the Arbitration and Conciliation Act - HELD THAT:- Language of Section 8 of the Arbitration and Conciliation Act has inherent restrictions. The Section puts a bar on the courts not to go outside the contours of Section 8 and the Court can only exercise jurisdiction to see if there is a valid clause and whether the dispute is arbitrable. Thus to give a finding at this stage to the effect R1 and R2 are owners of 4000 shares, which in fact is the main relief claimed in the Company Petition, the Ld. NCLT certainly had travelled beyond its jurisdiction. There was ....... + More

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• 2024 (4) TMI 442
  Demand of unearned increase value - Amalgamation or merger of the two companies does not involve any transfer within the meaning of the Transfer of Property Act, 1882 or not - Interpretation of Lease Agreement Clause - HELD THAT:- There is a specific clause in the order of amalgamation which holds that the said plots stand transferred from the original permanent lessee to the transferee M/s. Jaypee Rewa Cement Ltd, which is now known as M/s. Jaiprakash Associates Ltd. Clause II(4)(a) covers all the categories of transfers as it provides that the lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any....... + More

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• 2024 (4) TMI 308
  Liability of stamp duty on increase in share capital - How stamp duty is to be applied to Articles of Association in cases of increased share capital? - HELD THAT:- Filing of Form No. 5 is only a method prescribed, whereby notice of increase in share capital or of members of a company has to be sent to the Registrar, within 30 days of passing of such resolution. The Registrar then has to record such increase in share capital or members, and carry out the necessary alterations in the articles. Stamp Duty is affixed on Form No. 5 as a matter of practical convenience because a company itself cannot carry out the alterations and record the incre....... + More

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• 2024 (4) TMI 307
  Division of shares among the deceased's children - Interpretation of will - To be treated as part of her movable properties or not - equal division of the 100 shares of the appellant company-Vantage Construction (P) Limited, between the three children of the testator - cancellation of allotment of 9800 shares - HELD THAT:- What is apparent is that the issue with regard to the shareholding of the deceased was very much alive and in the knowledge of the parties. The whole tone and tenor of the correspondence between the parties referred hereinabove would show that HPSC was always ready and willing to transfer 1/3rd shareholding in the two ....... + More

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• 2024 (4) TMI 306
  Recovery of outstanding dues - priority of charges - whether Andhra Bank, which had the first charge over the property in question and is evidently a secured creditor, could have effected a sale of the property in question by way of a private treaty? - Legitimacy and consequences of a Sale Deed executed by the company in liquidation. - HELD THAT:- This Court has gone through the relevant provisions of the SARFAESI Act, 2002 as also the Companies Act of 1956. There is no gain saying that the company (in liquidation) was a borrower in terms of Section 2(f) of the SARFAESI Act and the debt was taken and in existence against the property in ques....... + More

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• 2024 (4) TMI 242
  Seeking conversion from an unlimited liability company to a limited liability company - Section 18 of the Companies Act, 2013 - whether the Appellant s application filed on 21st October, 2014 before the ROC will be governed by the conditions in the statutory provision of Section 18 of the Act as it existed on the said date or the additional criteria provided in Rule 37, which was inserted subsequently by the Legislature w.e.f. 27th July, 2016, would also be applicable to the said application? - HELD THAT:- The submissions of the Appellant cannot be accepted and it is opined that the Appellant did not acquire any vested right of conversion up....... + More

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• 2024 (4) TMI 177
  Maintainability of Criminal proceedings - Violation of principles of natural justice - facts as mentioned in the chargesheet as well as other material placed on record were not taken into consideration - illegal allotment of shares - illegal appointment of petitioner as a director and transfer of shares by misusing the digital signatures of the petitioner - HELD THAT:- Without going into the details of the present case, this Court is of the considered opinion that the learned Trial Court while passing the impugned order did not take into consideration the facts as mentioned in the chargesheet as well as other material placed on record by the....... + More

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• 2024 (4) TMI 176
  Anti-competitive agreements - Cartelisation - allegation is that appellant wrongly clubbed with members of the Cartel without any application of mind by the Commission - contravention of the provisions of Section 3(3)(a), 3(3)(c) and 3(3)(d) read with Section 3(1) of the Competition Act - HELD THAT:- In STATE OF MAHARASHTRA VERSUS KAMAL AHMED MOHAMMED VAKIL ANSARI ORS. [ 2013 (3) TMI 731 - SUPREME COURT ] it was held in a proceeding under the Competition Act, the strict rules of evidence are not applicable. Admittedly, all the statements are made by witnesses who were the authors/recipients of the emails and have confirmed their interaction ....... + More

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• 2024 (4) TMI 121
  Oppression and Mismanagement - Deletion of names of Respondent No. 4 to 8 and 13 from the array of the Respondents - Section 241, 242 and 243 of Companies Act - HELD THAT:- The very fact that the stay granted against the Respondent No. 4 to 8 and 13 continued for two years and was vacated on 18.12.2019 may be with an observation that Respondent No. 4 to 8 were nowhere related with such transaction, the recourse of which lie in the civil court and also the fact that the said order was not challenged rather the civil suit was filed by the Appellants and thereafter in order to avoid legal complication of maintaining the main petition on the sam....... + More

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• 2024 (4) TMI 120
  Recovery of premium dues, interest, default interest, penal interest, interest overdue etc. - priority of charges - waterfall mechanism - whether as per the Concession Agreement and the Escrow Agreement, payment of premium has priority over the payment of debts of the Bank? - HELD THAT:- The Concessionaire has agreed that it shall pay to the Authority for each year of the Concession Period, a premium in the form of an additional concession fee. The Clauses 25.4 and 26.2 contain an agreement of Concessionaire to pay the Authority a premium in the form of an additional concession fee. The definition, thus, clearly indicate that premium is trea....... + More

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• 2024 (3) TMI 1243
  Oppression and Mismanagement - denial of inspection of the books of accounts - EOGM not called for - purchase of loan without consent - failure to comply with statutory compliances - Validity of direction for independent forensic audit - HELD THAT:- The appellant was directed to file reply affidavit. Admittedly the appellant neither filed its reply affidavit nor documents as are now filed before us. It is in these circumstances it is needed to examine if the impugned order was wrong. Admittedly if the reply affidavit and documents were not filed before the Ld. NCLT then there was nothing before the Ld. Tribunal except to proceed on submissio....... + More

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• 2024 (3) TMI 1242
  Seeking restoration of name of the company on ROC - failure to file the Financial Statement and Annual Returns since incorporation - Section 252 of Companies Act, 2013 - HELD THAT:- It is not the case of the respondent that appellant company was ever engaged in the transfer of the funds to its own sister concerns or that it is a Shell company or is engaged in siphoning of funds of another company. Rather the appellant claims to have carried commercial transactions with a view to establish a relationship with DPIL in order to commence its operations in consonance with the objectives of the appellant company and had amassed substantial assets ....... + More

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• 2024 (3) TMI 1241
  Sanction of composite scheme of amalgamation - Section 230-232 of the Companies Act read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - The appellants contested the impugned order, alleging it was passed without considering the relevant clauses of the scheme of amalgamation - HELD THAT:- The impugned order doesn t discuss if the scheme of amalgamation was separable as pointed out in clauses no. 1.2.2 and 23.1. The impugned order is completely silent on these clauses. Even otherwise, section 231(1) (b) of the Companies Act duly empowers the Ld. NCLT to exercise discretion to give such directions in regard to any mat....... + More

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• 2024 (3) TMI 1240
  Professional mis-conduct by CA - SCN was not accompanied with documents relied upon against the Appellant and only a reference to the documents has been made in Annexure A appended with the show cause notice - non-compliance/violation of principle of natural justice by the NFRA - HELD THAT:- The fact remains that the Appellant has relied upon the reply filed by the Firm to the SCN which is pari materia the same in which he was working as engagement partner and shall knock the bottom of his case as now he cannot be allowed to take a different stand. The Appellant was required to file the reply to the show cause notice dated 15.11.2022 within ....... + More

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• 2024 (3) TMI 1144
  Oppression and Mismanagement - Appointment of Whole Time Director to the Company for a period of three years under Section 408 of the Companies Act, 1956 - control and interference by the Central Government appointees in the Board to cease consequent to the repeal of Section 408 of the Companies Act, 1956 or not - Advocates representing the appellants argued against the CLB's orders, focusing on the irregularities in the appointment of directors, the lack of effective management, and the adverse impact on the residents due to undeveloped infrastructure. HELD THAT:- It is a matter of record that the Government nominated Directors, over th....... + More

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• 2024 (3) TMI 991
  Validity of SCN proposing to declare the petitioners as wilful defaulters - Classification of Account as NPA - Impact of CIRP proceedings under IBC - Declaring the petitioners as wilful defaulters in terms of the Master Circular on Wilful Defaulters issued by the Reserve Bank of India (RBI) on July 1, 2015 - whether the injunction order passed by the writ court against the respondent-Bank, on the premise that the NPA classification was de hors the Master Circular, can be a relevant consideration for vitiating the Show-cause Notice? - HELD THAT:- In the present lis, even if the best case of the petitioners is taken into consideration, applyin....... + More

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Case Laws - IBC

• 2024 (4) TMI 870
  Rejection of request of the petitioner to extend the time and proceeded to post the proceedings for issues - exclusion of days during which the proceedings were stayed, for calculation of timeline of twelve months for completion of proceedings - HELD THAT:- From the order sheet of the Arbitral proceedings, it is seen that the petitioner who is respondent before the Arbitral Tribunal, took more than three to four adjournments to file its objection statement and also to file counterclaim. Thereafter, it took several adjournments and also sought extension of time to file surrejoinder. Admittedly, the Arbitral Tribunal entered reference on 17.11....... + More

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• 2024 (4) TMI 869
  Rejection of application filed by the Appellant before the Adjudicating Authority - Applicant is not authorised by the Corporate Debtor - HELD THAT:- The Adjudicating Authority in the impugned order has although noted certain submission of the Appellant made in the application but held that there being no authorization of the Board of Directors to file the application, application appears to be frivolous and seem to have been filed with the view to delay the proceeding. Appellant in the application has not claimed the application is being filed by any authorization of the Board. In the reply which was filed by Respondent No.2, which is also ....... + More

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• 2024 (4) TMI 868
  Direction for payment of fees to the Interim Resolution Professional and reimbursement of Rs 9 lakhs as CIRP expenses - wrong fixation of IRP fees - lack of earnestness and proficiency on the part of the IRP - HELD THAT:- There is no dispute over the fact that only three CoC meetings were held. The 1st, 2nd and 3rd meetings of the CoC were held on 24.06.2019, 13.11.2019 and 31.01.2020 respectively and all the three meetings were attended by the Authorised Representatives of the Appellant. However, when the decision-making process is analysed, it is noticed that that there were clear signs of lethargy and tendency on the part of the Appellant....... + More

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• 2024 (4) TMI 867
  Admission of Section 9 application filed by Operational Creditor - time limitation - Section 10A of IBC - HELD THAT:- Section 10A of the Code prohibited filing an application under Sections 7, 9 10 for any default arising on or after 25.03.2020. The prohibition continues for one year from 25.03.2020 i.e., upto 24.03.2021. On looking into the Part IV of the application as well as the statement showing particulars of claim it is clear that apart from lease rental from April 2021, all claim was within the 10A period. For lease rental of April 2021, no CIRP can be commenced since it did not fulfil the threshold. The Adjudicating Authority was of....... + More

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• 2024 (4) TMI 866
  Approval of Resolution plan - Propriety of the valuation exercise conducted by the RP - lenders of the Corporate Debtor are allowed to pursue the personal guarantees given by the Appellant - Corporate Debtor intended to be kept as a going concern or not - resolution plan was within the contours of Section 30(2) of the IBC or not. Propriety of the valuation exercise conducted by the RP - HELD THAT:- The RP did not violate the CIRP Regulations in the conduct of the valuation exercise. The RP had followed Regulation 27 to disclose the estimated fair and liquidation value of the Corporate Debtor. Further, we find that the CoC had duly considered....... + More

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• 2024 (4) TMI 828
  Release of assets (machines) seized by the Customs Authorities before initiation of CIRP - violation of principles of natural justice - HELD THAT:- On looking into the order of the Adjudicating Authority, it is clear that the order contains only direction to release the goods to the Customs Department without giving any reason and without even adverting to the facts, which were mentioned by the Applicant himself in the Application. The order of Adjudicating Authority, which does not give any reason for allowing the Application, deserves to be set aside on this ground alone. The statutory provision of Section 126 is clear and it does not need....... + More

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• 2024 (4) TMI 827
  Bench Reconstitution and Order Pronouncement - W hether an order reserved by a bench could be pronounced by a reconstituted bench without considering a subsequent application that called for a re-hearing based on new developments. - Admission of section 7 application - challenge to proceedings in SARFAESI Act initiated by Financial Creditor - HELD THAT:- In exercise of appellate jurisdiction, the Appellate Court can take all decision, which could have been passed by Adjudicating Authority while deciding Section 7 Application. In the present case, sequence of events and facts as noticed above shows that subsequent Application filed in Novembe....... + More

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• 2024 (4) TMI 826
  Admission of Section 7 Application of the Financial Creditor - commission of default or not - Corporate Debtor / Guarantor failed to fulfil obligations - existence of debt and default or not - HELD THAT:- Admittedly, in the instant case on hand, the Loans, were given by the Financial Creditor / Bank to the Principal Borrower (Coastal Energen Private Limited) and the Corporate Debtor (Fossil Logistics Private Limited), is the Corporate Guarantor, for the Loans, availed by the Coastal Energen Private Limited, as against the Coastal Energen Private Limited / Principal Borrower, an Application for initiating CIRP, was filed by the 1st Respondent....... + More

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• 2024 (4) TMI 825
  Rejection of application by the impugned order - Secured creditors or not - It is submitted that the NOIDA Authority was treated as an Operational Creditor and an amount of Rs.10 Crore was earmarked in the plan - HELD THAT:- NOIDA Authority was the lease holder and the records of lease were already with the Resolution Professional being record of the Corporate Debtor, therefore, the claim has to be reflected by the Resolution Professional in the Information Memorandum. In view of the judgment of this Tribunal in MR. ANIL MATTA VERSUS GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY AND ATUL MITTAL (RESOLUTION PROFESSIONAL OF ZEAL DEVELOPERS PV....... + More

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• 2024 (4) TMI 727
  Approval of Resolution Plan - whether the Appellant is secured creditor of the Corporate Debtor or not? - whether the decision of the RP declaring the Appellant as unsecured creditor is in accordance with law? - HELD THAT:- It is true that Section 3(31) does not refer to any registration of charge under Section 77. The judgment of the Hon ble Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. vs. Raman Ispat Pvt. Ltd. [ 2023 (7) TMI 831 - SUPREME COURT ], which has been relied by learned Counsel for the Appellant, is noticed. The above was a case where a claim was filed under IBC for government dues. The assets of the Corporate Debtor w....... + More

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• 2024 (4) TMI 692
  Dismissal of application seeking direction to release payment as an Operational Creditor, for the services rendered during the CIRP period - it was held by NCLAT that In view of the aforesaid discussion and the fact that Resolution plan was approved way back on 28.02.2020 by the Hon ble Supreme Court and has been implemented, we do not find any merit in the present appeal and the same is hereby dismissed. HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.

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• 2024 (4) TMI 691
  Prayer for condonation of delay - it was held by NCLAT that Our jurisdiction to condone the delay being limited to 15 days and we having held that benefit of Section 14 of the Limitation Act cannot be extended to exclude period during which I.A. No. 2337 of 2023 and I.A. No. 3270 of 2023 remained pending before the Adjudicating Authority, the Delay Condonation Applications which prays condonation of 74 days delay deserves to be dismissed. HELD THAT:- There are no reason to interfere with the order of the National Company Law Appellate Tribunal since no substantial question of law is involved in the appeal - appeal dismissed.

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• 2024 (4) TMI 690
  CIRP - Preferential Transaction - transactions infringing section 43 of the IBC - it was held by NCLAT that In the background of the report of Forensic Audit of the Corporate Debtor , it is quite clear that the said transactions amounting to Rs.7,81,352 are preferential transactions , as defined under section 43 of the IBC - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.

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• 2024 (4) TMI 634
  Maintainability of petition - availability of alternative remedy - discharge of the Advocate appointed by the JCM group and seeking appointment of its own Advocate - representative of Petitioner No. 1-Company - whether Petitioner No. 1 had followed the procedure provided under Rule 120 of the NCLT Rules whilst seeking discharge of the Advocate appointed by the JCM group and seeking appointment of its own Advocate to represent Petitioner No. 1-Company? - Violation of the principles of natural justice. HELD THAT:- In the present case, there is no doubt that the NCLT had the jurisdiction to pass the said Order dated 22nd March 2024, inter alia,....... + More

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• 2024 (4) TMI 633
  CIRP - Liquidation of corporate debtor - Refusal to approve the private sale in favour of Eshan Minerals Private Limited - It is submitted that Appellant Eshan Minerals Private Limited has already undertaken to pay all MIDC dues, including transfer charges directly to the MIDC - Appellate being successful bidder and a prospective bidder for the debtor's assets - HELD THAT:- Adjudicating Authority did not commit any error in issuing a direction for issue of a fresh Notice of conducting sale to other interested parties one party had been already expressed interest. The submission of Sh. Abhijeet Sinha that Sachani Developers who had shown ....... + More

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• 2024 (4) TMI 632
  Rejection of application against admission of CIRP u/s 7 application filed by the Financial Creditor (Respondent herein) - Financial Debt or Equity investment - disbursement by financial creditor to corporate debtor - HELD THAT:- The financial creditor i.e. Surya Testing Services Limited was not a party to the said agreement and the said agreement was between three different parties which are neither the financial creditor nor the corporate debtor - Agreement, thus, supersedes any prior oral or written agreements, commitments or understandings with respect to the matter provided therein. With regard to acquisition of ownership of Selma Preci....... + More

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• 2024 (4) TMI 631
  Acceptance of claim as Financial Creditor - mutually agreed settlement arrived at - whether by virtue of Deed of Security dated 20.03.2020 SPIL was discharged from its obligation of the financing document, Consent Term, and Amendment Agreement and no claim of Financial Debt of the Financial Creditor survived after Deed of Security dated 20.03.2020? - HELD THAT:- The Consent Term between the parties dated 09.09.2019, in para 2(a) clearly contemplated creation for first and exclusive charge by way of registered mortgage in respect of 2,00,000 sq. ft. carpet area in favour of IIFL and IIFL Home Finance Ltd. as additional security in respect of ....... + More

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• 2024 (4) TMI 630
  Recall application - power to recall/review - jurisdiction to review a judgment - HELD THAT:- The jurisdiction of this Tribunal to recall an order has already been stated by the 5 Member Bench of this Tribunal in Union Bank of India Vs. Dinkar T. Venkatasubramanian Ors. [ 2023 (7) TMI 209 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] 5 Member Bench has held that the Tribunal has a power to recall however, it has no jurisdiction to review a judgment and the circumstances under which the Court can recall a judgment has also been noted. It was further held that the recall disguised as review cannot be entertained. By ....... + More

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• 2024 (4) TMI 573
  Aggrieved person or not - sufficient cause or not - it was held by NCLAT that the Leave prayed for, by the Petitioner / Appellant, to prefer the present Comp. App is not accorded to, by this Tribunal, based on the facts and surrounding circumstances of the case, which float on the surface - HELD THAT:- The appellant T. Johnson, who was a Director of the company under liquidation had earlier submitted a proposal during the Corporate Insolvency Resolution Process, which upon consideration, was not accepted - at this stage, he should not be allowed and permitted to raise or propose a scheme. Further, the sale, as envisaged and accepted, was aft....... + More

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• 2024 (4) TMI 572
  Condonation of delay of 15 days in filing of the appeal - Jurisdiction - power of Tribunal to condone the delay - Section 61(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- After having perused the application for condonation of delay and the explanation offered for the delay, it is held that the Tribunal ought to have condoned the delay. The delay is condoned - impugned order set aside - appeal allowed.

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Case Laws - PMLA

• 2024 (4) TMI 865
  Maintainability of the instant petition - Money Laundering - scheduled offences - predicate offence - scope and spirit of Section 482 of the Cr.P.C. - whether the ECIR can be quashed in the exercise of its inherent jurisdiction under Section 482 Cr.P.C. by this Court? - HELD THAT:- On a minute perusal of the observations of Hon ble the Supreme Court in Vijay Madanlal Choudhary s case [ 2022 (7) TMI 1316 - SUPREME COURT] , it can be safely culled that an ECIR cannot be kept at the same pedestal as an FIR. It is crucial to note that an ECIR is not registered under the Cr.P.C., unlike a First Information Report (FIR), which is mandatorily regis....... + More

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• 2024 (4) TMI 718
  Seeking grant of pre-arrest bail - Money Laundering - predicate offence - proceeds of crime - illegal gratification - section 45 of PMLA - HELD THAT:- In the case of ROHIT TANDON VERSUS THE ENFORCEMENT DIRECTORATE [ 2017 (11) TMI 779 - SUPREME COURT ], three-judge bench of the Hon'ble Apex Court has held that such statements are admissible in nature and can make out a formidable case about involvement of accused in the offence of money laundering. Furthermore, the challenge to Section 50 of PMLA was rejected by the Hon'ble Apex Court in case of Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT] , wherein it was held that t....... + More

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• 2024 (4) TMI 689
  Money Laundering - summons issued by the petitioner, ED under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT:- From the documents produced on record today, it appears that the said respondents Collectors instead of respecting this Court s order, did not appear in person and filed their replies to the summons dated 01.03.2024 issued by the ED, stating inter alia that the information and data sought for is maintained by the other executive wings and would be required to be collected from different departments and offices located at various places and the process will require some time. When the Court had passed t....... + More

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• 2024 (4) TMI 688
  Seeking grant of anticipatory bail - Money Laundering - twin conditions of Section 45 of the PMLA Act satisfied or not - main accused was exonerated on identical allegations by the Adjudicating Authority - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PM....... + More

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• 2024 (4) TMI 687
  Money Laundering - Proceeds of crime - attachment of moveable property of the appellant - HELD THAT:- The perusal of the provision of Section 5 of PMLA reveal that the attachment of the property is warranted when it is involved in money laundering and the person is in possession of the proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation. The attachment of the property thus pre-supposes not only it to be proceeds of crime but apprehension of its concealment or transfer, etc. In the instant case, it is not in di....... + More

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• 2024 (4) TMI 686
  Money Laundering - provisional attachment order - Without there being any evidence to prove a case of money laundering by the appellant, the order of attachment has been confirmed by the Adjudicating Authority - violation of principles of natural justice - HELD THAT:- As per the accounting system, payment towards the supply of material has to be made by the firm to whom supplies have been made. It cannot by a stranger firm unless proper arrangements in writing are made. The facts of this case are quite alarming. The transaction to deposit the amount in the bank account of the appellant was not under normal circumstances but was at the time o....... + More

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• 2024 (4) TMI 667
  Money Laundering - grant of interim stay of the operation of the impugned summons issued by the petitioner ED - Section 50 of PMLA - HELD THAT:- From the section it clearly transpires that the concerned officers as mentioned therein, have the power to summon any person whose attendance he considers necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since, the petitioner ED is conducting the inquiry / investigation under the PMLA, in connection with the four FIRs, and since some of the offences of the said FIRs are scheduled offences under PMLA, the same would be the inves....... + More

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• 2024 (4) TMI 629
  Seeking release of petitioner - illegality in the arrest of the petitioner or not - whether petitioner was not produced before the learned Special Court within 24 hours of his arrest as mandated in law? - HELD THAT:- It is Section 19 of the PMLA which gives power to the Investigating Officer to arrest an individual against whom material is collected as contemplated under Section 2(1)(na), after following the process contemplated under Section 50 of the PMLA. Thus, the petitioner became an accused only when he was arrested under Section 19 of the PMLA, after the authority on the basis of material in his possession had reason to believe that t....... + More

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• 2024 (4) TMI 535
  Seeking release on ground of arrest of petitioner being illegal and in violation of principles laid down by the Hon ble Supreme Court in case of Pankaj Bansal v. Union of India [ 2023 (10) TMI 175 - SUPREME COURT] - In case of Pankaj Bansal, the Hon ble Supreme Court has inter alia held that the grounds of arrest must be communicated in writing to the person being so arrested through exercise of powers under Section 19 of PMLA, and failure to do so would render the arrest illegal. Challenge to arrest of the petitioner by Directorate of Enforcement on the ground that the arrest was in violation of Section 19 of Prevention of Money Laundering ....... + More

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• 2024 (4) TMI 476
  Money Laundering - Seeking grant of bail - appellant has been in custody for more than five years between the period - 2011 and 2018, in the predicate offence - HELD THAT:- Keeping in view the period of custody undergone, the present appeal is accepted and the appellant - Ram Binod Prasad Sinha is directed to be released on bail during the pendency of trial in ECIR no. 03/2018 registered for the offence(s) punishable under Section 4 of the PMLA, before the Court of Additional Judicial Commissioner-XVII-cum-Special Judge, CBI, Ranchi, subject to conditions imposed. The impugned judgment is set aside and the appeal is allowed.

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• 2024 (4) TMI 375
  Seeking grant of bail - Money Laundering - scheduled offence - proceeds of crime - delay in proceedings or not - HELD THAT:- The benefit of Section 436-A of the Code cannot be denied merely on the basis that allegations are serious. If the conditions are fulfilled, the Court is bound to give the benefit. Only the factors like the allegations, time required to be taken for conduct of the trial need to be considered. It is but natural for the Prosecution to take sometime for conduct of trial. At the same time, it is but natural that the Accused still remain in jail for a longer period. Ultimately, the Court has to balance in between the rights....... + More

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• 2024 (4) TMI 374
  Maintainability of writ petition - Money Laundering - proceeds of crime - Provisional Attachment Order - reasons to believe - impugned order is issued in consonance with the provisions of Section 5(1) of the Act of 2002 and more particularly the second proviso to Section 5(1) of the Act of 2002 or not - property acquired by the Petitioner No.1 vide the Deed of Sale dated 06.03.1997 could have been provisionally attached by the impugned order taking into account that the said property was acquired when the Act of 2002 had not come into force and more particularly when the provisions of the Act of 1988 was brought within the fold of the Act of....... + More

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• 2024 (4) TMI 174
  Seeking grant of anticipatory bail - Money Laundering - scheduled offence - Proceeds of crime - execution of Joint Venture Agreement and also a supplementary Agreement, according to which, a sum of Rs. 46 Crores was transferred to Suresh Narayan Vijaywargiya - existence of reasonable grounds to believe that applicant is guilty or not - seeking anticipatory bail on the ground that as Section 447 of the Companies Act was included in the schedule appended to the PMLA by way of amendment dated 19.4.2018 - HELD THAT:- A perusal of Explanation (ii) to Section 3, reflects that the process or activity connected with proceeds of crime is a continuing....... + More

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• 2024 (4) TMI 163
  Seeking grant of anticipatory bail - Money Laundering - bail sought on the ground that the applicant is 'sick' and 'infirm' within the meaning of proviso to Section 45 of the PMLA - HELD THAT:- In the present case, the applicant is aged about 83 years and seeking relief of anticipatory bail in terms of proviso to Section 45 of the PMLA. Proviso to Section 45 of PMLA provides that the person who is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special Court ....... + More

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• 2024 (4) TMI 117
  Money Laundering - seeking grant of bail - offence of fraud and forgery of valuable securities, etc. - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT:- It is not in dispute that applicant has no role in fraud, etc. committed by M/s Garvit Innovative Promoters Ltd. through BIKEBOT scheme. The applicant is neither named in 55 FIRs lodged by the investors nor charge-sheeted in those cases. After registration of ECIR by the Enforcement Directorate, the complicity of Mr. Dhirendra Pal Solanki had come at initial stage of investigation in the statement dated 22.11.2019 and 23.11.2019 of Sanjay Bhati (Chief Managing Director of M/s Gar....... + More

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• 2024 (4) TMI 116
  Money Laundering - illegal mining of granite, causing damages to human life and properties using explosives - scheduled offences - predicate offences - purchase from proceeds of crime or not - prosecution on the basis of presumption or not - HELD THAT:- Unconcluded predicate offence trial is not a bar for proceeding under the PMLA. The said grounds raised by A6 and A7 is not sustainable in view of the Supreme Court judgment in Vijay Madanlal Choudhary and others vs. Union of India and others [ 2022 (7) TMI 1316 - SUPREME COURT] . The Hon'ble Supreme Court after considering the object of the PMLA and the expression 'proceeds of crime&....... + More

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• 2024 (4) TMI 115
  Money Laundering - proceeds of crime - Provisional attachment of properties - Seeking to raise the attachment of the properties mortgaged to the petitioner bank - seeking declaration that G.Os.issued by Home Department, Government of Andhra Pradesh, to the extent of the properties mortgaged by M/s. Agri Gold Farm Estate India Private Limited to the petitioner Bank as illegal, arbitrary, unjust and violation of Article 300-A of the Constitution - HELD THAT:- In the instant case, the prime charge against the accused persons is that they have collected deposits from the depositors by making false promises of high returns by contravening Section....... + More

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• 2024 (4) TMI 114
  Seeking grant of bail - Money Laundering - money collected through cheating - beneficiaries of the money collected by GIPL from the investors on the pretext of supplying e-bikes to them - HELD THAT:- The applicant is the Director of M/s Mars Envirotech Limited and M/s Accord Hydraulics Private Limited. Preferential shares were purchased by ITV, PTPL and PBPL the sister concern of GIPL by transferring huge amount. The applicant was also made an Investment Advisor in Pental Technologies Private Limited, sister concern of GIPL with full authority and financial powers. The properties of the applicant have been attached by the Enforcement Directo....... + More

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• 2024 (4) TMI 76
  Money Laundering - Scheduled offences - whether the Non-Bailable Warrants (NBW) issued against the petitioner are liable to be quashed? - HELD THAT:- As recorded in order dated 05.12.2023, the petitioner had not appeared before the learned Trial Court. However, the exemption application filed on behalf of the petitioner was allowed for that day only by the link Court which was hearing the matters on the said day. An exemption application was again preferred by the petitioner on 05.01.2024, and the same was dismissed by the learned Trial Court considering his previous conduct of repeated absence from the Court and also the fact that he was no....... + More

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• 2024 (4) TMI 75
  Maintainability of petition - availability of alternative remedy of appeal - Money Laundering - scheduled offences - main contention raised by the petitioner was that he did not have a proper opportunity to place before the adjudicating authority certain documents which were at the relevant time not in his possession - HELD THAT:- If one goes through the scheme of the PMLA, sub-Section 1 of Section 26 provides for the filing of an appeal by any person aggrieved by an order made by the adjudicating authority, under the Act, before the Appellate Tribunal constituted under Section 25 therein. This appeal is to be filed within 45 days from the d....... + More

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Case Laws - SEBI

• 2024 (3) TMI 1183
  Recovery proceedings by SEBI - Maintainability of provisions of IBC over the provisions of the SEBI Act - notice was challenged by the appellants on the ground that the same cannot be enforced as the proceedings under the Insolvency and Bankruptcy Code, 2016 and the provisions of the Provincial Insolvency Act, 1920 initiated against the appellants are pending and the orders of interim moratorium have been passed - penalty imposed and sought to be recovered from the appellants by issuing the impugned certificate fall within the meaning of fine , which is excluded under clause (a) of sub-section (15) of Section 79 of IBC and therefore, the int....... + More

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• 2024 (3) TMI 1143
  Jurisdiction/ Validity of show-cause notice issued u/s 11(1), 11(2)(b), 11(4) and 11(B) of SEBI Act - as submitted show-cause notice is identical to what was issued to the Petitioner on the earlier occasion which came to be adjudicated and on which Petitioner was discharged and exonerated - Petitioner had earlier moved this Court by filing a Petition, however, the same was withdrawn by the Petitioner with liberty to approach the Security Appellate Tribunal and on such Interim Application came to be passed by the Tribunal ordered that in the interest of justice, the Respondent be directed to give an opportunity of a cross-examination and pers....... + More

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• 2024 (3) TMI 988
  Rejection of Petitioner s Settlement Applications - delay on the part of the Petitioner in making compliances of submission of documents and as per the Settlement Regulations, 2018 and more particularly Regulation 6(1)(b) - Petitioner made a representation to the Respondent requesting the Respondent to consider such documents by condoning the delay, which according to the Petitioner was not attributable to the Petitioner and for reasons which where not in Petitioner s control - HELD THAT:- Certainly there was delay on the part of the Petitioner in not complying with the time lines on submission of the documents, which according to the Petiti....... + More

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• 2024 (3) TMI 868
  Attachment of Properties - Large-scale irregularities committed by some share brokers in collusion with the employees of Banks and Financial Institutions - diversion of funds from the banks/FIs to the individual accounts of certain brokers - Section 10 of the Special Court (Trial of Offences relating to transactions in Securities) Act, 1992 - HELD THAT:- The entire case of the Custodian regarding subsisting debts of the appellant towards respondent Nos. 6, 7 and 8 was based on a communication received from the Income Tax Department. The appropriate witness to prove such communication would be the official concerned from the Income Tax Depart....... + More

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• 2024 (2) TMI 1028
  Exit Policy of SEBI - letter issued by SEBI calling upon CSE [Calcutta Stock Exchange] to apply for voluntary exit - Exit policy of SEBI in consonance with the provisions of the SCR Act [Securities Contracts (Regulation) Act] or not? - Was the CSE obliged to apply for continuance of its clearing house business in terms of the SECC Regulations, 2012 ? - Whether steps towards compulsory withdrawal of recognition of CSE suffer from a jurisdictional error and violation of the principles of natural justice HELD THAT:- In the circular issued by the SEBI, it has been stated that the same has been issued in exercise of powers conferred under Section....... + More

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• 2024 (1) TMI 1022
  Termination of petitioner as a Depository Participant of CDSL[Central Depository Services] - Requirement of meeting the net worth and minimum turnover - petitioners being required to have a turnover of Rs. 3 crores as not adhered - According to CDSL, the termination is in lieu of SEBI-2018 Regulations and more particularly the amendment brought about to the said 2018 Regulations with effect from 23 February, 2022 to Regulation 35 by insertion of a proviso inter alia in regard to a stock broker requiring to have a net worth of Rs. 3 crores within one year from the date of notification of the 2022 amendment to the 2018 Regulations - HELD THAT:....... + More

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• 2024 (1) TMI 985
  Writ petitions impugning the Revocation Order within the territorial jurisdiction of Delhi High Court - Violation of SEBI s Minimum Public Shareholding Norms ( MPS Norms ) and disclosure requirements - SCN provided an option for settlement mechanism under the SEBI (Settlement Proceedings) Regulation, 2018 - SEBI passed a common Settlement Order as stated that certain monetary and non-monetary terms were imposed on the Appellants in the Settlement Order, and steps have been taken by the Appellants to implement the said Settlement Order - Settlement Order stood revoked and withdrawn by SEBI in terms of Regulation 28 of the Regulations of 2018 ....... + More

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• 2024 (1) TMI 734
  Rights of the minority shareholders - Restoration of the Writ Petition - SEBI's Role and Response to Complaints The case involves the petitioners, who are minority shareholders of Bharat Nidhi Ltd. (BNL), filing a writ petition against BNL and the Securities and Exchange Board of India (SEBI) for various alleged violations of securities laws. The petitioners claimed that SEBI had not provided them with the investigation report or relevant documents related to their complaints against BNL, despite them being shareholders. They argued that BNL, along with majority shareholders (respondent nos. 3 to 9), committed several illegalities and vi....... + More

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• 2024 (1) TMI 588
  Issue of the Non-Convertible Debentures (NCDs) without complying with the listing provisions - Liability of directors - 'officer in default' - HELD THAT:- Learned counsel for the appellants have made an attempt to distinguish the role as assigned to the appellants as Directors. But at present, we are not influenced by such submissions. In view of the above, the civil appeals stand dismissed. Pending applications stand disposed of.

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• 2024 (1) TMI 188
  Violation of Rule 19A of the Securities Contracts (Regulation) Rules 1957 - failure to disclose transactions with related parties and other relevant information which concerns related parties to SEBI - Precipitate decline in investor wealth and volatility in the share market due to a fall in the share prices of the Adani Group of Companies. Adani group - situation was purportedly caused by a report which was published on 24 January 2023 by an activist short seller , Hindenburg Research about the financial transactions of the Adani group. The Hindenburg Report and certain newspaper reports allege that some Foreign Portfolio Investments FPIs i....... + More

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• 2023 (12) TMI 915
  Determination of jurisdiction of High Court for SEBI violations - Violation of SEBI s minimum public shareholding norms and violation of SEBI s minimum public shareholding norms - Separate and independent settlement applications were also filed by respondent nos. 2 to 8 - Whether this court is the appropriate forum for deciding the present writ petitions and granting the reliefs as prayed for? - HELD THAT:- A perusal of Clause 2 of Article 226 indicates that the writ jurisdiction can be exercised by the High Court primarily in relation to the territories within which the cause of action, wholly or in part arises. However, the location of suc....... + More

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• 2023 (12) TMI 381
  Power of SEBI to initiation action against Chartered Accountant (CA) / Auditor of the company - misconduct dereliction of duties and abhorrence of due diligence while conducting statutory audit - auditor as directed that the certified copy of the order be forwarded to the Institute of Chartered Accountants of India ( ICAI ) and National Financial Reporting Authority ( NFRA ) for appropriate action against the appellants - HELD THAT:- The scope of inquiry by SEBI is very limited and is confined only to the charge of conspiracy of involvement of the appellant in the fraud, if any, and to take consequential action if there is connivance or cons....... + More

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• 2023 (12) TMI 318
  Power of SEBI to initiation action against Chartered Accountant (CA) / Auditor of the company - Charge of conspiracy and involvement in the fraud against CA firm - statutory auditor working against the fiduciary capacity - appellant is a leading firm of Chartered Accountants consisting of 14 partners and 250 accountants, article assistants and others - appellant was appointed as the joint statutory auditor - appellant had acted against the fiduciary capacity and instead of working in the interest of the shareholders of the company the appellant facilitated the scheme of cleaning up the books of account of the Company despite being aware of t....... + More

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• 2023 (12) TMI 295
  Request to place on record a compilation of documents - Writ petitions by minority shareholders - HELD THAT:- This Court is apprised of the fact that the proceedings are listed tomorrow (29 November 2023) before the High Court of Judicature at Bombay. Hence, it is not necessary for this Court to entertain the Special Leave Petition at this stage, particularly bearing in mind what has been observed in paragraphs 2 and 3 of the earlier order [ 2023 (12) TMI 241 - SC ORDER] which read as follows: 2 Since the impugned orders of the High Court are purely of an interlocutory nature, we are not inclined to entertain the Special Leave Petitions unde....... + More

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• 2023 (12) TMI 260
  Unlawful gains by fraudulent and manipulative strategy made by Reliance Company - responsibility of noticee no. 2 i.e. the Managing Director - violating Section 12A of the SEBI Act r/w Regulations 3 and 4 of the SEBI PFUTP Regulations - vicarious liability on both criminal and civil liability for contravention of the SEBI Act, Rules and Regulations - Liability against violations committed by the company - WTM issued directions to disgorge the unlawful gains of Rs. 447.27 crores along with interest @12% per annum and further prohibited the Company and the 12 entities from dealing in equity derivatives in the F O segment of the stock exchanges....... + More

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• 2023 (12) TMI 241
  Request to place on record a compilation of documents - As decided by HC [ 2023 (10) TMI 1173 - BOMBAY HIGH COURT] once it is the entitlement of the petitioners in law to receive such documents, they need to be furnished such documents, unless furnishing of these documents would stand prohibited in law, which is certainly not a situation in the present facts. HELD THAT:- All material which is directed to be disclosed by the High Court shall be used only for the purpose of the proceedings pending before the High Court and shall not be disseminated to any third party. Since the impugned orders of the High Court are purely of an interlocutory n....... + More

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• 2023 (12) TMI 186
  Violation of SEBI Act - validity of settlement orders, which according to the petitioners were patently illegal being beyond the authority and power of the SEBI to accept any settlement - petitioners in writ petitions are minority shareholders - case of the petitioners is to the effect that there is a severe prejudice caused to the petitioners due to several illegalities committed by BNL, at the instance of the majority shareholders who are respondent Nos. 3 to 9 - petitioners have contended that they are the victims of BNL not being listed on a recognized stock exchange, which has severely affected their interest as investors in BNL - befor....... + More

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• 2023 (12) TMI 38
  Default of appointment of additional director in the category of non-executive independent director by way of a board resolution - person above the age of 75 years as appointed by the board of directors - non-compliance of Regulation 17(1A) of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( LODR Regulations for short) - whether approval is required to be taken from the shareholders of the Company through a special resolution before a person who has attained the age of 75 years can be appointed? - HELD THAT:- The board of directors can appoint any person as an additional director who shall hold office up to the ....... + More

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• 2023 (11) TMI 67
  Share manipulation - unlawful gains through disguised trading - transaction pursuant to the alleged SMS - synchronized trades, self-trades and reversal of trades thereby creating a false appearance of trading and manipulation of the trading volumes in the scrip in question - violation of Section 12A of the SEBI Act r/w Regulation 3 and 4 of the SEBI PFUTP Regulations - combined shareholding had triggered the requirement of making an open offer under Regulations 10 and 11 of the SAST Regulations as these 5 noticees were acting in concert and had failed to make an open offer thereby violating the said regulations - orders restraining the appel....... + More

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• 2023 (11) TMI 66
  Front running trading activity by certain entities - fraud for the purposes of the PFUTP Regulations - Offence under SEBI - investigation found that the appellant Manish Chaturvedi was the key person who perpetrated the front running activity with the aid and assistance of other noticees including his parents (Laxmi Chaturvedi and Manohar Chaturvedi) - HELD THAT:- WTM and the AO correctly held that the trades of Anandilal Chanda and Anandilal Chanda HUF were based on the specific information obtained by Anandilal Chanda from Madhu Chanda, and more so in the absence of any plausible explanation by the appellants (the Chandas) of the peculiar ....... + More

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Case Laws - FEMA

• 2024 (4) TMI 660
  Validity of SAFEMA proceedings - petitioners submitted that the detention order have been quashed - HELD THAT:- As respondent No. 1 does not dispute the fact, that the detention order quashed by the Delhi High Court has attained finality, inasmuch as, the Apex Court has confirmed the quashing of the detention order passed by the Delhi High Court. Also does not dispute that in view of the aforesaid, the attachment of the properties under SAFEMA, will not survive. ORDER - The impugned order passed by the Competent Authority under Sections 7 and 19 of the SAFEMA as well as the order passed by the ATFP, are quashed and set aside - SAFEMA authori....... + More

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• 2024 (4) TMI 237
  Adjudicating Authority under FEMA - Case of the appellants that the show cause notice having been issued by the Special Director, Directorate of Enforcement, he is the Adjudicating Authority and the further proceedings are required to be conducted by him alone and not by the Additional Director - Single Judge dismissed the writ petitions holding that the case was transferred from the Special Director to the Additional Director in view of the enhancement of pecuniary jurisdiction and the same is well within the provisions of the Act of 1999. HELD THAT:- The persona designata is a person who is described as an individual, as opposed to a perso....... + More

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• 2024 (3) TMI 600
  Offence under FEMA/FERA - Levy of penalty - Review petition - proceedings against matter had gone up to the Hon ble Apex Court and the SLP had been dismissed - taking or refraining from taking action which had the effect of securing receipt of the full export value of the goods exported from the country of final destination had been delayed beyond the prescribed period in contravention of Section 18 (2) of the FERA read with notification dated 01.01.1974 issued by the Central Government - penalty imposed upon the appellants and the proforma respondent vide order dated 14.07.2009 (Annexure A-4), they were directed to make a pre-deposit of 10%....... + More

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• 2024 (3) TMI 502
  Violation under FERA - export proceeds were not realized - as alleged transactions A1 to A3 have contravened the provisions of Section 18(2) and 18(3) of FERA Act, 1973 for failing to take steps to realize bill value of export proceeds and A2 and A3 abetted A1 in sending said consignments towards exports and the export proceeds were not realized, which is in violation of the said provisions of FERA - According to A1, the signatures on G.R.Forms were forged by A2, as such, she cannot be held responsible for the said exports. Export transactions are apparent and they were done on behalf of A1 s firm with the involvement of A2. A3 as the Custom....... + More

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• 2024 (3) TMI 19
  Adjudication made under FEMA Act - Non issuance of show cause notice as well as non giving of an opportunity of being heard within the meaning of Section 16 of the Act r/w Rule 4(1) and 4(3) of the Rules certainly would amount to violation of principles of natural justice - as decided by HC [ 2023 (12) TMI 914 - MADRAS HIGH COURT] notice as contemplated under the Act as well as the Rules as discussed herein above have been served on these noticees and Merely because at the time of serving the notice, these noticees were not available at the address at Bengaluru would not ipso facto entile them to claim immunity that the notices served on the....... + More

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• 2024 (2) TMI 1257
  Violation under FERA - charge u/s. 56 of FERA - Company being in Liquidation - Offences by companies u/s 68 of FERA - As submitted Company being in Liquidation and a Provisional Liquidator having been appointed for it, only the Provisional Liquidator can represent the Company in the proceedings pending before the learned ACMM and not the petitioner herein. Whether the charge against the Company can be framed through the petitioner? - HELD THAT:- As per Section 305 CrPC Procedure when corporation or registered society is an accused would show that where the accused person is a company, it may appoint a representative for the purpose of the tr....... + More

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• 2024 (1) TMI 337
  Power of search and seizure conferred on the Directorate of Enforcement as per FEMA - validity of seizure/confiscation made by the respondents - seeking a direction to return/release the money, currency illegally confiscated/seized - HELD THAT:- The provisions of Section 132B of the Income Tax Act, 1961 inter alia provides for application of seized and requisitioned assets which provides that the assets seized may be dealt with in the manner provided therein, whereby, the amount of any existing liability and the amount of liability determined on completion of the assessment may be recovered out of such assets, however, such power is, thereaf....... + More

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• 2023 (12) TMI 914
  Adjudication made under FEMA Act - Non issuance of show cause notice as well as non giving of an opportunity of being heard within the meaning of Section 16 of the Act r/w Rule 4(1) and 4(3) of the Rules certainly would amount to violation of principles of natural justice - HELD THAT:- The mode of service of notice has been clearly demonstrated at Rule 14, i.e., 3 methods, namely 14(a), 14(b) and 14(c). At least Rule 14(b) and 14(c), the notices have been served on these noticees in their last known address or the address where they carried on business last. Merely because at the time of serving the notice, these noticees were not available ....... + More

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• 2023 (12) TMI 787
  Offence under FEMA - petitioner had made foreign remittances to different foreign companies under the guise of payments against the bogus import of services and that these amounts are held outside India by the related foreign companies of the petitioner - petitioner is engaged in the business of providing unsecured short-term loans to its customers/borrowers in India via its Digital Application based platform called the CashBean - As contended that the petitioner had engaged a Hong Kong based Company, for procurement of an IP licence and had entered into a Software Licence Agreement with it for providing IP and Digital Lending Software Licen....... + More

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• 2023 (12) TMI 786
  Offence under FEMA - bidding process for the IPL franchise organised by the BCCI - arrangement of the flow of funds by Respondents was made to route the investments through Mauritius as the funds flowing into India from UK was not permissible - maximum penalty imposed - Special Director indicates that although satisfaction in respect of contravention of the provisions of the FEMA has been recorded, there is no explanation or any discussion in respect of the basis on which maximum penalty has been imposed - Tribunal has recorded a that an exorbitant penalty has been imposed upon the individuals arrayed without recording any findings on the sp....... + More

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• 2023 (12) TMI 442
  Validity of enquiry / investigation proceedings - taking cognizance of the complaint - Investment in foreign companies - violation of Sec.4 of FEMA - Competent Authority passed orders not to seize the assets of the petitioners - as alleged assessee subscribed to 70.0 lakhs shares in certain M/s. Silver Park, a Singapore based company, registered as per the laws of Singapore, and that he had later transferred those shares to his wife and two children outside India. Adjudicatory Authority in his show cause notice has indicated that they would be proceeded against u/s 13(2) and enquiry into this is underway - Adjudicating Authority had issued a....... + More

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• 2023 (11) TMI 480
  Validity of order of forfeiture of properties u/s 7 of SAFEMA consequent to revocation of the detention order passed under COFEPOSA - as argued that as detention order passed u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA] has been subsequently revoked/withdrawn as such SAFEMA proceedings would become non est and untenable HELD THAT:- SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto as such activities were having a deleterious effect on the national....... + More

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• 2023 (11) TMI 315
  Recovery of penalty imposed on the respondent - Validity of insolvency notice issued to the respondent - interpretation of statute - words creditor, debt and debtor as defined under Section 2A and 2B of the Presidency Town Insolvency Act should be given a restricted conventional meaning - term decree or order appearing in Section 9(2) of the Presidency Towns Insolvency Act 1909 would mean only a decree or order of a civil Court or would it include any order for payment of money passed after an adjudicatory process? - maintainability of application under Section 9(5) - Enforcement Directorate is competent to initiate proceedings in insolvency....... + More

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• 2023 (10) TMI 1118
  Proceedings initiated u/s 56 of FERA - non issue of SCN - Violation of principle of natural justice - HELD THAT:- No complaint can be filed unless the person accused of such offence has been given an opportunity of showing that he has such requisite permission. It is clear that from the facts of this case and also not disputed by Respondent that there is no such show cause notice which was issued and served on the fresh address of the petitioner at Gurugram. That apart, it is pertinent to note that though the notice issued under proviso to Clause (ii) of sub section (2) of Section 61 FERA was not served upon the petitioner, the demand notice....... + More

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• 2023 (10) TMI 891
  Foreign contribution utilized for undesirable purposes - Suspension of certificate - seeking Release/permit the Petitioner to utilize 25% of the total foreign contribution amount/funds held by the Petitioner u/s 13(2)(b) of the Foreign Contribution (Regulation) Act - HELD THAT:- Section 13(2) of the FCRA permits utilization of foreign contribution which is in custody of the person whose certificate has been suspended. There is no occasion to restrict the term his custody only to the current account. The amounts which are held in fixed deposits or in government bonds etc. are also unutilized foreign contributions which can be made available t....... + More

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• 2023 (10) TMI 377
  Offence under FEMA - gold bullion of 3773.52 gm. was seized along-with other articles like electronic devices mobile phones, hard disk etc during search operations - HELD THAT:- The provisions of Section 37 of the FEMA read with Sections 132 and 132B of the Act of 1961 including its proviso clauses clearly speak that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorized officer shall make a note or inventory of such stock-in-trade of the business. Further, where the person concerned makes an application to the AO within thirty days ....... + More

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• 2023 (10) TMI 292
  Stay of demand / waiver of pre-deposit - Levy of penalty - Contravention of Section 18(2) of FERA - failure to realize export proceeds to the tune of US $ 2,03,925/- - Penalties Levied - Tribunal has waived 60% of the total penalty calling upon the appellant to deposit only 40% thereof, for which a period of 30 days was granted - plea for full waiver of mandatory, statutory pre-deposit and non-compliance with an interim order of the Tribunal - HELD THAT:- Tribunal has, in waiving 60% of the penalty, and directing deposit of only 40%, taken note of all contentions of the Appellant, including the hardship projected. In fine, a balance has been....... + More

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• 2023 (10) TMI 118
  Detention order - whether the inordinate delay of thirty years in the execution of the detention order is explained by the concerned authorities? - detention order indicates that the detaining authority has relied upon the search and seizure proceedings u/s 34 of the Foreign Exchange Act 1973 ( FERA ) - HELD THAT:- The detention under the COFEPOSA Act is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing from smuggling goods, or abetting smuggling goods, or engaging in transporting or concealing or keeping smuggled goods or dealing with the same or....... + More

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• 2023 (9) TMI 1102
  Offences committed under the repealed FERA Act - prosecution for the offences punishable as committed prior to the repeal of FERA - purposes of the prosecution of offences punishable under Sections 56 and 57 of FERA - HELD THAT:- What is material here is sub-section (4) of Section 49 of FEMA, which provides that subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Sub-section (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior....... + More

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• 2023 (8) TMI 60
  Proceedings under FEMA - receiving foreign exchange in lieu of issuance of equity shares/share warrants - whether no approval has been granted by FIPB? - HELD THAT:- As clearly transpires without any semblance of doubt that the custodian general of foreign exchange is the Reserve Bank of India and any permission with regard to inflow of foreign exchange would definitely have to have the permission of the Reserve Bank of India. In the case on hand, the permission is for receiving foreign exchange in lieu of issuance of equity shares and for the said purpose, the appropriate authority to grant permission is FIPB. Newbridge, the foreign investo....... + More

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Case Laws - Service Tax

• 2024 (4) TMI 864
  Classification of services - transporting coal from one location to another - GTA services or cargo handling service - reverse charge mechanism - HELD THAT:- When WCL required a service provider to move the coal from one location to another and for this purpose, engaged the service of the appellant, the essential part of the contract is of transportation. Loading and unloading are incidental to it. Loading and unloading per se are of no use except when they are in conjunction with the transportation. The intention of the WCL is to transport coal and in the process, it also gets loaded on to the truck and unloaded at the destination. While th....... + More

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• 2024 (4) TMI 863
  Resolution of dispute under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Seeking withdrawal of appeal - HELD THAT:- It is found that no order has been passed by the Appellate Authority on the merits of the case and the appeal has been dismissed as withdrawn for the reasons that Applicant had opted for SVLDRS Scheme. As the issue was not finally settled under the said scheme and no SVLDRS-4 issued, the matter has to be considered on the merits and final decision taken. Undisputedly the matter was not settled under the SVLDRS Scheme and as the matter has not been settled under the said scheme right to appeal which is enshrined in t....... + More

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• 2024 (4) TMI 862
  Short/non-payment of service tax - Jurisdiction to raise the Demand - amount reimbursed by ABP to the Appellant on actual basis towards the direct cost of ABP operations in terms of the written agreement - relevant period is July 2004 to March 2007 - invocation of Extended period of Limitation - HELD THAT:- The demand is made clearly indicating the Service Tax payable, Service Tax paid and short payment of Service Tax. For the period 2004-2005 and 2005-06, they have held that no Service Tax is paid for the period 2006-2007. They have taken into account the Service Tax paid by the Kolkata unit and have arrived at the short payment of Service ....... + More

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• 2024 (4) TMI 861
  Refund of Cenvat Credit - 100% EOU / STPI unit - Export of services as well as providing services to Domestic Tariff Area (DTA) units - section 11B of the Central Excise Act, 1944 - disallowance of CENVAT Credit, wrongly taken by the party on ineligible input services - demand alongwith interest and penalty - Time Limitation - HELD THAT:- The manner in which the issue has been handled and decided by the lower authorities is not only unique but is totally alien to the legal provisions outlined by Finance Act, 1994 and the rules made there under. In case the revenue authorities were of the view that certain amount of tax due was not paid by th....... + More

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• 2024 (4) TMI 824
  Disallowance of Cenvat credit of service tax paid on medical insurance of the employees and their families - reversal of Cenvat credit under Rule 6(3) wrongly calculated - Short payment of interest on late paid service tax on services received from an Associated Enterprise from outside India - Non payment of service tax on certain imported services - levy of Service tax on legal fee paid - penalties. Disallowance of Cenvat credit of service tax paid on medical insurance of the employees and their families - denial of credit on the ground that the appellant was unable to provide the breakup - HELD THAT:- The break-up was available in the SCN ....... + More

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• 2024 (4) TMI 823
  Levy of service tax - Amounts received by the appellant from Priyadarshini Gas Seva [PGS] - Legal Consultancy service (Reverse Charge Mechanism [RCM]) - Renting of immovable property service (from 2009-2010 to 2011-2012) - Miscellaneous income (other than negative list service) - Director s remuneration under reverse charge - Extended period of limitation and penalty under section 78. Amounts received by the appellant from Priyadarshini Gas Seva [PGS] - HELD THAT:- There are no essential requirements for levying service tax in this demand, viz., a service recipient, a service provider, a service (or which is not in the negative list) and a c....... + More

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• 2024 (4) TMI 822
  Short payment of service tax - outdoor catering services - under-valuation of taxable services - in-flight catering services to International and Domestic airlines - bundled services - HELD THAT:- For an activity to be called as outdoor catering, there has to be the preparation of food, supply of food and serving of the food. Apparently and admittedly, the activity of the respondent herein is that they are providing/supplying food to various airlines alongwith the responsibility of packing and handling of food, loading in transportation thereof alongwith the requisite equipments and of providing the laundry services. This admitted fact is su....... + More

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• 2024 (4) TMI 821
  Demand of differential service tax - Valuation - non-inclusion on reimbursable expenses incurred by the appellant in taxable services - pure agent services - HELD THAT:- The appellant is only pure agent and all the expenses for transportation, loading and un-loading etc. paid by the appellant were reimbursed from the Principal on actual basis. In that circumstances, the appellant is not required to include the reimbursable expenses in their taxable services. Moreover, the present issue whether the reimbursable expenses are includable in the taxable value or not, has been examined by this Tribunal in the case of M/s Ganga Carrier Private Limi....... + More

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• 2024 (4) TMI 820
  Non-payment of Service Tax - works contract services - amounts obtained from Form 26 AS (Income Tax Department) for the Financial Year 2015-16 - HELD THAT:- Since the activity of providing WCS is not covered under negative list mentioned in section 66D of the Finance Act (impugned period being subsequent to 01.07.2012), the activity is taxable - The activity is liable to tax. But with an abatement as is given in Notification No.11/2014 dated 11th July, 2014 since the construction of additional building amounts to execution of original works. In the present case the said taxable service is provided to M/s. Garrison Engineers which admittedly ....... + More

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• 2024 (4) TMI 790
  Invocation of Extended period of Limitation - Evasion of service tax - taxability - construction of complex service - failure to file proper ST-3 returns - suppression of material facts - Section 78 of the Finance Act, 1994 - HELD THAT:- Applying provisions of Section 73, to the facts of the present case, it is clear that there was no intention on the part of the Respondent to evade payment of service tax. By evasion, it would be meant that the assessee was eluding and avoiding to pay tax by trickery. The intention of the Respondent in the present case was not to escape or to have an intention to default in payment of taxes so as to defeat t....... + More

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• 2024 (4) TMI 789
  Recovery of erroneous refund - amount paid by the appellant s Chennai Unit towards the pre-deposit in connection with an appeal filed arising out of order in Tuticorin Central Excise Division with a different Registration Number - whether the amount paid by the appellant from their Head Office Registration can be treated as a pre-deposit or not? - time limitation - HELD THAT:- The appellant was made to file a refund-claim before the Assistant Commissioner of GST and Central Excise, Egmore Division, Chennai who has treated the pre-deposit amount as excess payment of tax and rejected the refund-claim as being hit by limitation in terms of prov....... + More

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• 2024 (4) TMI 788
  Short payment of service tax - assessee s only contention is that as per section 73 (3) no show cause notice should have been issued with respect to these demands - invocation of Extended period of Limitation - HELD THAT:- The scheme of the service tax requires the assessee to self-assess service tax and file returns as per section 70 of the Finance Act. If the assessee either fails to furnish the service tax return or, having filed the return, fails to assess the tax in accordance with the provisions of the act or rules, section 72 empowers the central excise officer to require the assessee to produce such accounts, documents or other evide....... + More

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• 2024 (4) TMI 787
  Levy of service tax - business support service - making facility to the customers to book online tickets of movies and other shows - HELD THAT:- As per the agreement, card companies were required to reimburse the appellant all the amounts that were being offered by the card companies to their customers through the ticket booking platform. Appellant had entered into agreements with cinema houses for payment of tickets booked through their platform. For booking of tickets through their platform, appellant collected convenience fee and paid service tax on the same. As per the record, appellant has not retained any amount to itself which was rec....... + More

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• 2024 (4) TMI 786
  Classification of service - supply of tangible goods for use service or not - providing the cylinder skid vehicle to the service recipient on charge based on per trip - HELD THAT:- On the identical issue in the appellant own case this Tribunal in UNIVERSAL DISTRIBUTORS VERSUS C.C.E. S.T. -VADODARA-I [ 2023 (10) TMI 1382 - CESTAT AHMEDABAD] remanded the matter to the adjudicating authority for passing a fresh order, therefore following judicial discipline no different view can be taken in the present appeal. Form the above order in the appellant s own case matter was remanded to the adjudicating authority. Following the same the present matte....... + More

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• 2024 (4) TMI 726
  Levy of service tax - Intellectual Property Services - license fees and other incidental expenses paid to the Russian Company i.e. M/s. Rosboronexport, Moscow, Russia towards transfer of technical knowhow and technical assistance for manufacture of aircraft engines - amount received from the Malaysian company i.e. M/s. Setia Technologi SDN, BHD, Malaysia against repair/rectification of MIG Engines - Reverse Charge Mechanism - suppression of facts - Extended period of Limitation. Service tax on license fees and other incidental expenses paid to the Russian Company i.e. M/s. Rosboronexport, Moscow, Russia towards transfer of technical knowhow ....... + More

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• 2024 (4) TMI 725
  Point of Taxation rules - service received from associate enterprises on the taxable value as determined in terms of section 67 of the Finance Act, 1994 - demand made in the present case on the basis of certain provisional entries made by the appellant in their book of accounts, as expenses towards the payments to be made to their associate enterprises, for the services of professionals visiting them - Extended period of Limitation - Penalty - HELD THAT:- By not paying the service tax at the time of making the expense entries in their book of accounts, appellant has failed to pay the service tax at the relevant time, as per Rule 6 (1) of the....... + More

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• 2024 (4) TMI 724
  Levy of service tax - Business Auxiliary Services (BAS) - expenses reimbursed to the foreign distributors under reverse charge mechanism - Extended period of limitation - HELD THAT:- Hon ble Apex Court held in the case of COLLECTOR OF CENTRAL EXCISE, CALCUTTA VERSUS PRADYUMNA STEEL LTD. [ 1996 (1) TMI 127 - SUPREME COURT] that mere mention of wrong provision of law, when the power exercised is available even though under a different provision is by itself not sufficient to invalidate the exercise of that power. It is found that the show-cause notice was issued alleging that the appellants have not paid the service tax for the various service....... + More

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• 2024 (4) TMI 723
  Recovery of service tax alongwith interest and penalties - Business Auxiliary Service - Business Support Service - agreements with M/s Rathipriya Trading Pvt. Ltd. [presently known as M/s Indiawin Sports Pvt. Ltd., Mumbai (ISPL)] for playing in Indian Premiere League - HELD THAT:- The Tribunal in its judgment, in the case of SOURAV GANGULY VERSUS COMMISSIONER OF SERVICE TAX, KOLKATA (NOW COMMISSIONER OF CENTRAL GOODS SERVICE TAX CENTRAL EXCISE, KOLKATA SOUTH) [ 2020 (12) TMI 534 - CESTAT KOLKATA] has relied on the case of CST, DELHI VERSUS MS. SHRIYA SARAN [ 2014 (7) TMI 78 - CESTAT NEW DELHI] and the Hon ble Calcutta High Court s decision i....... + More

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• 2024 (4) TMI 685
  Condonation of delay of 1776 days in filing the Civil Appeal - Rectification of mistake - mistake apparent of the face of record or not - Refund claim - export of services or not - it was held by High Court that The Tribunal s order rejecting application of the petitioner to rectify mistake apparent from record in its order cannot be faulted - HELD THAT:- Issue notice on the application for condonation of delay as well as on the Special Leave Petition and the Civil Appeal.

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• 2024 (4) TMI 684
  Maintainability of petition - availability of alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994 - marginal delay in filing the present Writ Petition - HELD THAT:- Since the petitioner has an alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994, I am inclined to dispose of this Writ Petition by giving liberty to the petitioner to file statutory appeal before the appellate Commissioner within a period of 30 days from the date of receipt of a copy of this order subject to the petitioner depositing 20% of the disputed tax considering the delay involved. If such an....... + More

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Case Laws - Central Excise

• 2024 (4) TMI 860
  Reversal of proportional CENVAT Credit - manufacture as well as trading activity - demand on the ground that the sale of tyre tube and flap in set to their depot is a trading activity which as per amendment made on 01.04.2011 such trading activity is a exempted service accordingly proportionate credit is required to be reversed - HELD THAT:- The activity of selling the tyre duly fitted with tube and flap whether a trading activity or otherwise is pending before the Hon ble Supreme Court in appellant s own case in SLP (CE) No. 34310-34311/2011 wherein two orders were issued by the Hon ble Supreme Court dated 14.10.2011 and 08.11.2011. In view....... + More

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• 2024 (4) TMI 859
  Refund claim - rejection on the grounds of unjust enrichment - requirement to be credited to Consumer Welfare Fund constituted under Section 12C of Central Excise Act 1944 - HELD THAT:- It is quite evident that the appellant has categorically stated in the letter that they are charging the central excise duty from their customer, while maintaining the selling price at the same level by increasing the discount given from 40% to 52.10%. Undisputedly appellant himself admits that they are charging the central excise duty from their customers. That being so the burden of duty paid has been passed on the customer. The reason for giving additional....... + More

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• 2024 (4) TMI 858
  Levy of Excise Duty - appellant has retained certain portion of freight without paying the same to the transporters on such freight amounts retained - place of removal - Extended period of limitation - HELD THAT:- It is seen from the record that the appellant is paying VAT at their factory gate as is evidenced by the invoices enclosed with the appeal papers. Therefore, the place of removal in this case would be the factory gate of the appellant. This issue is no more res integra. The Hon ble Supreme Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [ 2015 (10) TMI 613 - SUPREME COURT ] h....... + More

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• 2024 (4) TMI 819
  Refund of Excess duty, claimed pursuant to finalisation of provisional assessments - duty burden has already been passed on to the ultimate consumer at the time of clearance of goods or not - principles of unjust enrichment - HELD THAT:- In the respondent s own case PRINCIPAL COMMISSIONER OF CENTRAL TAX VERSUS M/S. VIKRANT TYRES LTD, [PRESENTLY KNOWN AS JK TYRES AND INDUSTRIES PLANT-I] [ 2021 (10) TMI 586 - KARNATAKA HIGH COURT] , the Hon ble High Court Karnataka considering more or less similar arguments and scrutiny of the claims from the angle of applicability of unjust enrichment and the refund sanctioned by the Revenue to the respondent....... + More

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• 2024 (4) TMI 818
  Invocation of Extended period of Limitation - denial of N/N.12/2012-CE dated 17.03.2012 - Solar Inverters - Combiner Box / Array Guard - PV Logs and parts - HELD THAT:- In the present case, the appellant has challenged the confirmation of demand invoking extended period of limitation advancing the argument that all the facts have been disclosed to the Department through their ER-1 Returns and hence suppression of facts cannot be invoked against them. It is found that the appellants are engaged in the manufacture of parts of Solar Power Generating System viz. Solar Inverters, Combiner Box / Array Guard and PV Logs. But on going through one of....... + More

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• 2024 (4) TMI 817
  CENVAT credit of service tax paid - goods transport agency [GTA] service availed for outward transportation of goods on Free on Road [FOR] destination basis from the factory gate or depot of the appellant to the premises of the customers - place of removal - rules 2(l) of the CENVAT Credit Rules, 2004 - HELD THAT:- It is clear from rule 2(l) of the 2004 Rules that w.e.f. 01.03.2008, input service means any service used by a manufacturer, directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal - The word place of removal , therefore, assume importance. According ....... + More

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• 2024 (4) TMI 816
  CENVAT Credit - common input services used for the exempted goods, namely electricity cleared from the manufactory of the Appellant - CENVAT Credit availed on common input services used for exempted services alleged to be Trading of goods, but claimed to have cleared inputs as such - Extended period of limitation - Interest - penalty. Whether the computation of demand of the amount of Rs.97,01,260/- on account of CENVAT Credit availed on common input services used for the exempted goods, namely electricity cleared from the manufactory of the Appellant is correct? - HELD THAT:- The Appellant in this case has been paying the amount of CENVAT C....... + More

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• 2024 (4) TMI 785
  CENVAT Credit - inputs - denial on the ground that the use of such goods for repair and maintenance of plant and machinery by the respondent assessee cannot be considered to have been used in or in relation to the manufacture of final products , as they are not used coextensively in the process of manufacturing of the petroleum products by the respondent assessee - HELD THAT:- Considering the fact that the Tribunal has relied upon the decision in the respondent assessee s own case, as well as in view of the fact that now the issue is no more res-integra in view of the decision of the Hon ble Supreme Court in case of Kisan Co-operative Sugar ....... + More

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• 2024 (4) TMI 784
  CENVAT Credit - inputs and input services - disallowance of entire cenvat credit availed by the appellant on the inputs and input services utilized in the manufacture of goods on which central excise duty was paid and ER-1 returns were filed - HELD THAT:- Revenue has unilaterally come to a conclusion without assigning any justification through the said show cause notice as to how the appellant was required to clear the goods under full exemption under serial No. 47A of N/N. 04/2006-CE dated 01.03.2006. As per the provisions of law, Revenue should have issued the appellant with a show cause notice calling upon them to show cause as to why the....... + More

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• 2024 (4) TMI 722
  Invocation of Extended period of limitation - contravention of provision of rule 9(1)(f) of CCR - Levy of penalty u/r 15(3) of CCR - HELD THAT:- The Commissioner (Appeals) has also not recorded any specific reasons of invoking the extended period of limitation - only reason given in the show cause notice for invoking extended period of limitation is that the appellant had contravened the provision of rule 9(1)(f) of CCR. It has been presumed that CENVAT credit was availed by the appellant with intention to increase its CENVAT balance with the logical consequence of non-payment of duty in cash and with intent to evade payment of duty. It is a....... + More

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• 2024 (4) TMI 721
  Clandestine Removal - corroborative evidences or not - entire demand has been raised on the basis of three private unauthenticated seized documents from the office of M/s. EFPL - penalty - HELD THAT:- Although it is the claim of the Revenue that truck numbers are mentioned on the said documents which were involved in clandestine removal of goods, no investigation was conducted with regard to the truck owners or drivers to find out as to whether those vehicles were used by the appellant for clandestine removal of the goods, in support of the allegation of clandestine clearance. Further, no evidence has been produced by the Revenue with regard....... + More

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• 2024 (4) TMI 672
  Appropriate forum - Maintainability of appeal u/s 35(H) of the Central Excise Act, 1944 - determination of question relating to rate of duty or excise or to the value of goods for the purpose of assessment - HELD THAT:- The appeal would not be maintainable before this Court. However, the appellant would be at liberty to assail the order by filing an appeal u/s 35(L) of the Act of 1944 before the Apex Court. However, on filing of the photocopy of the original documents, the certified copy of the original documents, if any, be returned to the learned counsel for the appellant. Appeal disposed off.

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• 2024 (4) TMI 671
  Recovery of CENVAT Credit alongwith interest and penalty - input - goods used in the fabrication of various machineries, support structures, platforms for machineries and equipments etc. used in the factory - HELD THAT:- Undisputedly, the appellants during the relevant period used the aforesaid inputs in their factory in the fabrication / manufacture of various equipments, machineries, plants etc. and support structures holding the capital goods. The learned Commissioner in the impugned order following the judgment of the Larger Bench of this Tribunal in VANDANA GLOBAL LTD. VERSUS CCE [ 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] decided the ....... + More

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• 2024 (4) TMI 670
  CENVAT Credit - input service - hiring of aircraft - services were used for furtherance of cost of the business of manufacture of the goods or not - HELD THAT:- The definition of the input service is wide enough to cover all the services received by the appellant as input services without being directly used in the process of manufacture. If it is establish that the services were used by the manufacturer for the production of the finished goods which is one of the criteria to credit could not have been denied. In the present case, Commissioner (Appeals) have concluded that charter services were raised for transportation of the senior executi....... + More

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• 2024 (4) TMI 626
  CENVAT Credit - capital goods - Immovable Property or not - fabrication and setting up of entire paint shop - entire demand has been quantified on the basis of the figures taken from the books of accounts maintained by the appellant - suppression of facts or not - Extended period of Limitation- HELD THAT:- The department instead of analyzing whether these items fall under the category of capital goods and eligible for credit has analysed whether the paint shop as assembled at site is an excisable goods. The appellant has not availed credit on paint shop . They have availed credit on various machinery, parts, and components which have been us....... + More

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• 2024 (4) TMI 625
  Recovery of duty with interest and penalty - wrongfully claiming benefit of exemption under Sl.No.84 of N/N. 6/2006-CE dt. 01/03/2006 (for the period December 2009 to 15/03/2012) and under Sl.No.332 of N/N. 12/2012-CE dt. 17/03/2012 - case of Revenue is that since pole shoe is a part of rotor being not used inside the factory for manufacture of WOEG, benefit of notification is not admissible - Extended period of Limitation - HELD THAT:- Analysing the relevant entries finally the learned Commissioner has observed that rotor and controller are items which are distinctly different from the generator being located outside the generator which are....... + More

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• 2024 (4) TMI 624
  Requirement of reversal of CENVAT Credit - inputs used in the manufacture of dutiable and exempted goods exported - non-maintenance of separate records of receipt and consumption of inputs of dutiable and exempted goods - Rule (6) of Cenvat Credit Rules - HELD THAT:- This issue has already been considered by the jurisdictional High Court of Himachal Pradesh in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DRISH SHOES LTD. [ 2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT] wherein also the Hon ble High Court after relying upon the decisions of the Bombay High Court in the case of REPRO INDIA LTD. VERSUS UNION OF INDIA [ 2007 (12) TMI 209 -....... + More

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• 2024 (4) TMI 623
  CENVAT Credit - capital goods or not - various items, used for fabrication / erection of various plants as a part of the Phase III expansion project on lumpsum key basis - invocation of Extended Period of Limitation - HELD THAT:- The issue in question has been considered by Chandigarh Bench of this Tribunal in the case of INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF C. EX. S.T, PANCHKULA [ 2020 (1) TMI 373 - CESTAT CHANDIGARH] . The facts are more or less similar to the present one inasmuch as the assesse therein are manufacturers of petroleum products falling under Chapter 27 of CETA, 1985. They have availed cenvat credit during July ....... + More

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• 2024 (4) TMI 531
  Valuation - inclusion of incentive/industrial subsidy of 75% of Sales Tax/VAT/CST paid on the sale of goods, received from the Government of Madhya Pradesh under the Industrial Promotion Policy, 2010 in the transaction value under section 4 of the Central Excise Act, 1944 or not - it was held by CESTAT that the contention of the learned counsel for the appellant that incentive/capital subsidy received from the State Government cannot be included in the transaction value has to be accepted - HELD THAT:- There are no merit in this appeal. The civil appeal stands dismissed.

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• 2024 (4) TMI 470
  Amendment in cause title - Valuation - whether or not the amounts collected by the appellants as Sales Tax from the customers but not paid to the State Sales Tax authorities should be included in the assessable value for the purpose of levy of Central Excise duty - HELD THAT:- M/s.Tata Steel Limited does not have any objection in respect of the application moved for amendment of cause title registered as I.A. No. 39029/2024 and therefore, the said application is allowed. Application allowed.

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Case Laws - Vat / CST

• 2024 (4) TMI 857
  Interest on delayed refund - relevant time for calculation of interest - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for money payable for interest upon money due from defendant to the plaintiff is 3 years and the time from which the period begins is when the interests become due. In terms of Section 30 (4) of Delhi Sales Tax Act, 1975, interest becomes due and payable on delayed refund on expiry of 90 days from the date of making the claim under Sub-Section 3. Accordingly, the period of limitation for claiming interests on the delayed payment would be t....... + More

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• 2024 (4) TMI 815
  Seeking grant of anticipatory bail - bailable offence or not - failure to make payment of tax - wilful attempt to evade any tax or payment of any tax - Section 74(2) of the MVAT Act - HELD THAT:- Under Section 76 of the MVAT the offences under that Act were bailable. Therefore, question of grant or refusal of anticipatory bail would arise only if Sections 406 and 420 of the I.P.C. are made applicable in the present case. The F.I.R. and the investigation carried out so far reveals that, there was evasion of tax or non payment of tax to the tune of Rs. 1,47,56,486/-; as mentioned earlier. There is no dispute that this amounts to an offence U/s....... + More

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• 2024 (4) TMI 814
  Recovery of alleged outstanding dues of unpaid tax amounts - Section 29 of APVAT Act, 2005 - Appeal was dismissed for default due to the petitioner's repeated non-appearance despite being granted several adjournments. - HELD THAT:- Considering the submissions advanced, it is evident from the appellate order dated 19.07.2023 that the appeal is of the year 2015 and inspite of several adjournments, the petitioner was not turning up for hearing and consequently, the appeal was dismissed for default against which application for restoration of appeal filed recently is pending. To provide opportunity of hearing to the petitioner on the merits ....... + More

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• 2024 (4) TMI 813
  Benefit of Exemption from CST - stock transfer or inter-state sale - Whether the movement of goods in the instant case is only a stock transfer to the branches and liable to be exempted under Section 6A of the CST Act 1956 or the transaction is an interstate sale under Section 3(a) of the CST Act and liable for tax under CST Act 1956? - HELD THAT:- The impugned order shows that the works orders sent by the HO contain the details of individual customer companies and item wise description of the rubber sheets with specific design and quantity which manifests that rubber sheets are being tailor-made to suit the needs of the individual customers....... + More

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• 2024 (4) TMI 812
  Entitlement for issuance of C-Forms post the introduction of G.S.T. regime for natural gas - entitlement for the refund of the amount already collected at full rate. Issuance of C-Forms Post G.S.T. Regime - HELD THAT:- In CARPO POWER LIMITED VERSUS STATE OF HARYANA AND OTHERS [ 2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT] , before the Hon ble Punjab and Haryana High Court, the issue was the challenge made by a Petitioner for being refused to be issued C-Forms for the natural gas purchased in an inter-state trade for generation of electricity from Gujarat to Haryana. The question before the Court whether after the amendment of the C.S.T........ + More

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• 2024 (4) TMI 764
  Short payment of Interest - denial of interest from 01.04.2017 to 18.12.2020, the period during which the amount of input tax credit was lying in the electronic credit ledger of the petitioner - section 38 of the VAT Act. HELD THAT:- On perusal of provisions of subsection (2) of section 38 of the Act, it is clear that the registered dealer is entitled to refund from the date immediately following the date of closure of the accounting year to which the said the amount of refund relates till the date of payment of the amount of such refund. In the facts of the case, appellant order would be the relevant date or the end date however, the date f....... + More

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• 2024 (4) TMI 720
  Seeking to remove the encumbrance of the attachment in the petitioner's property - specific case of the petitioner is that the petitioner is a bona fide purchaser of the property from the fifth respondent and is therefore entitled to immunity under proviso to Section 43 of TNVAT Act, 2006 - HELD THAT:- In the facts and circumstances of the case, it is evident that the petitioner and the fifth respondent are known to each other and are in the same business. The petitioner ought to have obtained the certificate or for prior permission from the Commercial Tax Department before purchasing the property as to whether the property was fully fre....... + More

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• 2024 (4) TMI 622
  Violation of principles of natural justice - validity of impugned order dated 23.11.2020, confirming the demand for the Assessment Year 2013-14 - HELD THAT:- In view of the materials on record, the impugned order is unsustainable as the impugned order fails to note the decision of this Court in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [ 2017 (3) TMI 536 - MADRAS HIGH COURT] . In somewhat similar circumstances, this Court in the case of M/S. ANNALAKSHI TRADERS VERSUS THE ASSISTANT COMMISSIONER (ST) , POLLACHI (EAST) ASSESSMENT CIRCLE, POLLACHI. [ 2022 (1) TMI 806 - MADRAS HIGH COURT] held Admit....... + More

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• 2024 (4) TMI 621
  Time limitation for availing Input Tax Credit - Validity of reassessment order and demand notices - Availment of Input Tax Credit by filing belated returns - HELD THAT:- In BEML's case [ 2023 (1) TMI 341 - KARNATAKA HIGH COURT] , the Division Bench held A plain reading of provision of Section 10(3) of the KVAT Act, 2003, shows that no time limit or restriction is prescribed for availing the input tax credit. Apart from setting aside the impugned orders passed by the Joint Commissioner of Commercial Taxes, the impugned reassessment orders at Annexures-'H1' to 'H3' and consequent demand notices at Annexures- 'J1' to....... + More

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• 2024 (4) TMI 467
  Rejection of branch transfer / Stock transfer of Goods - movement of the goods from the manufacturing unit of the respondent at Navi Mumbai in the State of Maharashtra to the branch offices in other States - sale taking place during the course of inter-State trade or commerce or whether it was a case of branch transfer by the respondent to its branches at Ahmedabad, Delhi, Coimbatore, Bangalore, Chennai, Cochin, Hyderabad and Visakhapatnam? - burden of proof - HELD THAT:- What transpires from the decision of the Supreme Court in Hyderabad Engineering [ 2011 (3) TMI 1427 - SUPREME COURT] is that for a sale to be in the course of inter-State t....... + More

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• 2024 (4) TMI 426
  Validity of reassessment proceedings - Extension of period of limitation and the consequential notice dated 29.11.2022 issued by respondent no.3 to reassess the petitioner for assessment year 2012-13 (UP) - HELD THAT:- The Supreme Court in M/s Modi Naturals Ltd. Vs. The Commissioner of Commercial Tax, UP [ 2023 (11) TMI 298 - SUPREME COURT] has opined that notwithstanding the non-vatable/exempt nature of DORB, its sale value would have to be considered/included for the purpose of carving out exclusion under Section 13(1)(f) of the UP VAT Act. On that reasoning, the judgment of the learned Single Judge has been reversed. In view of the above ....... + More

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• 2024 (4) TMI 369
  Levy of tax - turnover of old machinery and equipment after the closure of business - scope of Business as contained in Clause (iv) of Section 2(e) of the U.P. VAT Act, 2008 - liability of payment of interest on the admitted turnover in terms of Sub-section (2) of the Section 33 of the U.P. VAT Act, 2008 - HELD THAT:- Upon a perusal of the orders passed by the Assessing Officer, First Appellate Authority and the Tribunal, one is able to decipher that the Tribunal has categorically come to the finding that the items that were sold after the closure of the business amounting to Rs. 1,33,20,839/- are in the nature of plant and machinery falling....... + More

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• 2024 (4) TMI 333
  Reversal of Input Tax Credit - genuine transactions or not - deregistered firm or not - validity of assessment order. Transactions not genuine - HELD THAT:- It is recorded that assessee, M/s. Chimco had declared purchase of coffee seeds from M/s.SLN Coffee Pvt. Ltd., and an output tax of Rs. 78,86,156/- has been paid. The assessment has been made by the Additional Commissioner of Commercial Taxes. The document speaks for itself that so far as petitioner was concerned, the tax amount was paid. M/s. Chimco was deregistered - HELD THAT:- The document (Annexure-M) filed by the assessee shows that deregistration has been approved on 16.07.2011 an....... + More

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• 2024 (4) TMI 322
  Review of the order - Recovery of dues - priority of charges - secured creditor have a prior right over the relevant Department of the Government to appropriate the amount realized by the sale of a secured asset - HELD THAT:- Considering the clear findings as recorded by the Court, in which the Court has clearly observed that the situation would be governed by the determination in paragraph 154 therein as there is material to indicate that the action of sale proclamation initiated by the respondents was preceded by notice under Section 178 of the MLR Code, warrant of attachment under Section 267(3), order of attachment in Form 4 and auction ....... + More

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• 2024 (4) TMI 220
  Maintainability of appeal - requirement to pay the mandatory pre-deposit under the GVAT Act and CST Act. It is the case of the petitioner that the Commissioner Appeals as well as the Tribunal while passing an order of pre-deposit has not considered the prima facie case in favour of the appellant. HELD THAT:- It appears that the Tribunal has imposed the condition of pre-deposit consisting of the entire demand under the Central Sales Tax. The Tribunal has passed an order requiring the appellant to deposit Rs. 36,00,000/- out of the total remaining demand of Rs. 36,19,825/-. Therefore we are of the opinion that the Tribunal has exceeded its jur....... + More

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• 2024 (4) TMI 219
  Requirement to fulfil condition to deposit 15% of the disputed tax demand, to participate in the assessment proceedings - alleged mismatch of purchases between the returns filed by the appellant and the other dealers - HELD THAT:- The learned Judge, after having considered the submission made by the learned counsel for the appellant / assessee, has granted one opportunity to the assessee, however subject to a condition that the assessee has to deposit 15% of the tax demanded, by the order impugned herein. According to the learned counsel for the appellant, when the learned Judge is inclined to remand the matter to the respondent for re-consi....... + More

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• 2024 (4) TMI 166
  Illegal attachment and withdrawal from bank account by respondents to recover the arrears of VAT dues of another company - it was held by High Court that There is no question of lifting the corporate veil treating that the proprietor of petitioner entity and the assessee M/s.Shree Ganesh Jewellery House Limited as one and the same or as entities which are connected or related - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petition is dismissed.

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• 2024 (4) TMI 165
  Levy of tax under Section 4A of the Entry Tax Act - extraction of coal and the work of coal extraction - manufacture or not - HELD THAT:- The issue raised by the applicant needs to be adjudicated. Therefore, the Commercial Tax Tribunal is called upon to make a reference elaborating the facts and question of law and refer the same to this Court. The Tax Case is disposed of.

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• 2024 (4) TMI 2
  Recovery of dues - priority of charges - whether appellant State/Excise Department will be having first charge upon the property of M/s Gilvert ISPAT Pvt. Ltd., in terms of provisions of Section 26 of the H.P. VAT Act, 2005 or secured creditor Punjab National Bank shall have priority to recover over any other charge, including charge in favour of State, in terms of provisions of Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) as amended from time to time? HELD THAT:- In Central Bank of India s case [ 2009 (2) TMI 451 -....... + More

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• 2024 (3) TMI 1134
  Recovery of dues - Attachment of assets - dues of MVAT Authorities have charge in priority to the secured creditors or not - HELD THAT:- A plain reading of Section 26-E would show that once a secured creditor registers its security interest (under Section 26-B), notwithstanding any other law in force, the debts owed to the secured creditor shall be paid in priority over all other debts including taxes payable to the State Government. The registration of security interest referred to in Section 26-E of the SARFAESI Act, is the registration of such interest with CERSAI under Section 26-B. The formulation of the two provisions in the SARFAESI A....... + More

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Case Laws - Indian Laws

• 2024 (4) TMI 783
  Dishonour of Cheque - Scope of interim compensation - Liability of the Director the Company - Provisions of Section 143A of the NI Act is mandatory in nature or not - HELD THAT:- In the present case, the Impugned Order dated 24.07.2021 reflects that the learned Trial Court was of the opinion that Section 143A of the NI Act, is mandatory in nature and interim compensation has to be granted to the complainant in terms of the same as a rule and not as an exception. This view of the learned Trial Court cannot be upheld in view of the judgment of the Supreme Court in RAKESH RANJAN SHRIVASTAVA VERSUS THE STATE OF JHARKHAND ANR. [ 2024 (4) TMI 719 ....... + More

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• 2024 (4) TMI 782
  Dishonour of Cheque - compounding of offences - amicable settlement of disputes - Sections 138 and 147 of the Negotiable Instruments Act - HELD THAT:- In the facts of the instant case and the statutory provisions and the mandate of the Hon ble Supreme Court, in cases of Kanchan Mehta [ 2017 (10) TMI 218 - SUPREME COURT] and P. Mohanraj [ 2021 (3) TMI 94 - SUPREME COURT] , once the proceedings under Section 138 have been held to be proceedings in the form of a civil sheep in a criminal wolf s clothing, therefore, once the petitioner-accused has amicably decided to settle/liquidate/discharge his liability, though, the transaction-proceedings h....... + More

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• 2024 (4) TMI 719
  Dishonour of Cheque - grant of interim compensation - whether the provision of sub-section (1) of Section 143A of the Negotiable Instruments Act, 1881 (for short, the N.I. Act ), which provides for the grant of interim compensation, is directory or mandatory? - factors to be considered while exercising powers under sub-section (1) of Section 143A of the N.I. Act. HELD THAT:- In the case of Section 143A, the power can be exercised even before the accused is held guilty. Sub-section (1) of Section 143A provides for passing a drastic order for payment of interim compensation against the accused in a complaint under Section 138, even before any ....... + More

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• 2024 (4) TMI 669
  Dishonour of Cheque - Plea to expedite the trial of a complaint - Case of applicant is that though this complaint under the Act, 1881 was filed in the year 2022, but the trial could not be concluded - Section 143(2) of NI Act, 1881 - HELD THAT:- The Apex Court in the case of INDIAN BANK ASSOCIATION AND OTHERS VERSUS UNION OF INDIA AND OTHERS [ 2014 (5) TMI 750 - SUPREME COURT ], has issued direction for expeditious disposal of the cases under the Act, 1881 where it was held that We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious dispo....... + More

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• 2024 (4) TMI 668
  Dishonour of Cheque - Grant of Bail - Mandate to deposit of a minimum of twenty percent of the fine or compensation awarded by the trial court - failure to consider the Statutory Provisions as enshrined U/S 148(1) 148 (2) of NI Act 1881 - HELD THAT:- In the instant case, the Appellate court although vide order dated 29.02.2024 had admitted the appeal and also allowed the Bail Application moved by the appellant/petitioner but by the same order despite admitting the appeal preferred by the appellant/petitioner had erroneously rejected the stay and operation of the impugned order dated 16.02.2024 passed by the trial court and thereby, rejected ....... + More

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• 2024 (4) TMI 600
  Regularization of petitioners who had served as casual/daily wage workers for a period of more than 10 years when decision in Uma Devi was pronounced by Apex Court [ 2006 (4) TMI 456 - SUPREME COURT] - Reason for Tribunal's disinclination to grant relief was that no material could be brought on record to establish that appointment of petitioners was not illegal but merely irregular. HELD THAT:- It is not dispute at the Bar by learned counsel for employer that the petitioners are equally situated as Ravi Verma Ors [supra] for having completed more than 10 years of casual/daily wage services on the date 10.04.2006 when decision in Uma Devi....... + More

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• 2024 (4) TMI 557
  Maintainability of curative petition - restoration of arbitral award which had been set aside by the Division Bench of the High court on the ground that it suffered from patently illegality. Curative Jurisdiction may be invoked if there is a miscarriage of justice - HELD THAT:- In RUPA ASHOK HURRA VERSUS ASHOK HURRA ANOTHER [ 2002 (4) TMI 889 - SUPREME COURT] , a Constitution Bench of this Court dwelt on whether any relief is available against a final judgement of this Court after the dismissal of a petition seeking review of the judgement. Two opinions were authored. The main judgment was by Justice Syed Shah Quadri (on behalf of Chief Just....... + More

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• 2024 (4) TMI 556
  Dishonour of Cheque - issuance of statutory notice to proper person or not - acquittal of respondent No. 2 - not giving findings by the trial court will affect the outcome of the case or not. HELD THAT:- In this case, admittedly the cheques are issued on a Bank account maintained by the Company with the Federal Bank. It was not a Bank Account in the name of Respondent No. 2. He has signed as a Director of Respondent No. 1. The issue in Aneeta Hada s case is slightly different. It is on the point of necessity of joining Company when the cheques are drawn on an account maintained by the Company. The Company has to be joined - In this case, Com....... + More

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• 2024 (4) TMI 466
  Sale of mortgaged (scheduled) properties which was to be conducted by the Authorized Officer (Respondent No.2) of the Respondent-Bank - default in repayment of loan by the Borrower - HELD THAT:- This Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions invo....... + More

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• 2024 (4) TMI 465
  Time limitation - Refusal to condone the delay in challenging the Order passed by the Competent Authority and Administrator, SAFEM(FOP)A, 1976 and NDPS Act, 1985, New Delhi - HELD THAT:- A perusal of the judgments in CHHATTISGARH STATE ELECTRICITY BOARD VERSUS CENTRAL ELECTRICITY REGULATORY COMMISSION AND OTHERS [ 2010 (4) TMI 1031 - SUPREME COURT] and M/S. PATEL BROTHERS VERSUS STATE OF ASSAM AND OTHERS [ 2017 (1) TMI 330 - SUPREME COURT] show that if a special Act provides for a special period of limitation then Sections 4 to 28 of the Limitation Act cannot be made applicable and, therefore, there is no power in the Appellate Tribunal to c....... + More

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• 2024 (4) TMI 425
  Interpretation of a contract condition, which required the measurement of quantities used for payment for embankment construction with soil or with pond ash - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- This Court, in VOESTALPINE SCHIENEN GMBH VERSUS DELHI METRO RAIL CORPORATION LTD. [ 2017 (2) TMI 1239 - SUPREME COURT] commenting on the value of having expert personnel as arbitrators, emphasized that technical aspects of the dispute are suitably resolved by utilising their expertise when they act as arbitrators. The prevailing view about the standard of scrutiny- not judicial review, of an award, by persons of the....... + More

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• 2024 (4) TMI 368
  Dishonour of Cheque - seek production of documents in order to discover or to obtain proper proof of the relevant facts - Section 311 of the Cr. P.C. - HELD THAT:- The petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr. P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr. P.C., sought to bring on record the documents that are ....... + More

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• 2024 (4) TMI 366
  Bills of Exchange - Discounting of bill or Document Collection Method - appellant would vehemently contend that the learned Trial Judge was not right in treating the transaction as a 'Bill Discounting Transaction' where the appellant had assured payment - HELD THAT:- Though appellant would contend that there was no underlying LC or BG or an OCC limit in favour of the first defendant to support these transactions, we are unable to accept his contention as the arrangement between the first and second defendants are exclusively within their knowledge and the presence or absence of LC or BG or an OCC limit will not affect the liability o....... + More

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• 2024 (4) TMI 332
  Freezing of Bank Accounts - investigation under the FCRA - Seeking to continue utilising their accounts for payment of salary and institutional expenses - Section 37 of the Foreign Contribution (Regulation) Act 2010 - Contempt petition - HELD THAT:- The petitioner had taken the Court through various documents to show that actually there was no contempt and whatever amount had been withdrawn was within the permissible limits depending upon the expenses incurred in the previous years and the allegations of any withdrawal from the accounts for purposes other than the salary and institutional expenses, is not correct. The petitions disposed off ....... + More

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• 2024 (4) TMI 218
  Dishonor of Cheque - Ascertaining nature of transaction - whether a criminal proceeding can be initiated and an accused held guilty when there is already a civil court decree concerning the same transaction - criminal jurisdiction would be bound by the civil Court or not - HELD THAT:- This Court in Satish Chander Ahuja vs. Sneha Ahuja [ 2020 (10) TMI 1379 - SUPREME COURT] considered a numerous precedents, including Premshanker [ 2002 (9) TMI 849 - SUPREME COURT ] and Vishnu Dutt Sharma [ 2009 (5) TMI 862 - SUPREME COURT] , to opine that there is no embargo for a civil court to consider the evidence led in the criminal proceedings. The positi....... + More

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• 2024 (4) TMI 217
  Criminal Conspiracy - Challenge to impugned order primarily on grounds that the prosecution case is based on speculations and the trial court has failed to appreciate the prosecution story in right perspective - Existence of conspiracy between the appellants Arun Kumar Gurjar and Baljeet Singh as alleged by the prosecution or not - HELD THAT:- In the present case the complainant PW 1 brought one typed complaint in office of CBI which was stated to be not properly addressed. Thereafter another complaint Ex. PW 1/A was retyped in office of CBI and said complaint is basis of registration of present FIR. There is nothing on record which can sugg....... + More

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• 2024 (4) TMI 164
  Conscious possession of contraband item - poppy seeds - facts not put to the appellant during his examination - Section 313 of Cr.P.C. - violation of principles of natural justice - HELD THAT:- The circumstance against the appellant that he visited the railway station and enquired with the station supervisor about the contraband parcels has not been put to the appellant during his examination under Section 313 of Cr.P.C - Even the alleged circumstance that the railway receipt was in the appellant s name has not been put to him in his statement under Section 313 of Cr.P.C. The circumstances on which the prosecution relied upon against the app....... + More

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• 2024 (4) TMI 107
  Constitutional power of the Central Government over State - The imposition of a Net Borrowing Ceiling on the state - The inclusion of State-Owned Enterprises in the borrowing restrictions - The adjustment of over-borrowing from previous fiscal years against the current year's borrowing limit - True import and interpretation of the expression if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends contained in Article 131 of the Constitution - scope and extent of Judicial Review exercisable by this Court with respect to a fiscal policy - balance of convenienc....... + More

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• 2024 (4) TMI 29
  Dishonour of cheque - Legally recoverable debt or liability - respondent/accused was acquitted of the offence under Section 138 of the NI Act - want of supporting certificate under section 65B of the Evidence Act - inadmissible evidence - HELD THAT:- There is evidence in the form of ledger book Ex. AW-1/1 which shows the supply of material by the respondents/accused to the complainant. That apart there is also an admission of the complainant in his cross-examination that the accused used to sell goods to the complainant. On the other hand, the complainant failed to produce and prove the bill and invoices raised against the accused. He also f....... + More

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• 2024 (4) TMI 1
  Dishonour of Cheque - MoU between the parties contained an arbitration clause, pursuant to which arbitration proceedings have been initiated - maintainability of complaint under Section 138 NI Act - HELD THAT:- The arbitration proceedings as well as the proceedings under Section 138 of the NI Act arise from separate causes of action and the pendency of the arbitration proceedings would not affect the proceedings under Section 138 of the NI Act. There is no merit in the contention of the petitioners that the complaint under Section 138 of the NI Act is not maintainable in view of the ongoing arbitration proceedings between the parties. Additi....... + More

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