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Showing 1 to 20 of 1305 Records
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2023 (2) TMI 1305 - GAUHATI HIGH COURT
Cancellation of GST registration of the petitioner - time limitation - period of limitation as prescribed under the Act had already elapsed for filing an application for revocation of the cancellation of GST registration under Section 30 as well as for an Appeal under Section 107 of the CGST Act, 2017 - non-service of personal notice - HELD THAT:- The order for cancellation of GST registration of the petitioner was issued on 07.09.2021 It is apparent that the order for cancellation of GST registration was passed on 07.09.2021 and the application for revocation of cancellation was required to be filed within 30 (thirty) days therefrom as per the provisions of the CGST Act, 2017 - It is apparent that the authorities did not take into account the orders passed by the Apex Court regarding cognizance for extension of limitation and had accordingly failed to pass appropriate orders revoking the cancellation of GST registration. There is another aspect required to be noticed. If the petitioner is not included within the GST regime, then any statutory dues that may be required to be deposited by the petitioner may not be deposited and which will not be in the interest of the revenue.
The reasons for default on the part of the petitioner to submit its periodical returns as required under GST Act and the Rules, as pleaded in the present proceedings, are attributed to the financial losses suffered by the petitioner because of the COVID-19 Pandemic situation.
The purpose of limitation being prescribed in a statute is two fold, namely, to ensure compliance of the statutory provisions by the persons on whom the provisions of the statute are applicable and further to ensure that no third party rights which may have been created in the meantime are permitted to be nonsuited/ unsettled. Under the scheme of GST Act and Rules, the non-revocation of cancellation of GST registration is likely to prejudice the assessee alone. In cancellation of such GST registration for the reasons mentioned under the Section, it cannot be said that any third party rights are created against the assessee.
The matter is remanded back to the departmental authority to reconsider his prayer for revocation of cancellation of GST registration - impugned order is set aside - petition disposed off by way of remand.
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2023 (2) TMI 1304 - MADHYA PRADESH HIGH COURT
Dishonour of Cheque - service of notice - whether no proceeding under Section 138 of the Negotiable Instrument Act can be initiated against a person to whom notice under section 138(b) of the N.I. Act has not been given? - HELD THAT:- On a perusal of the impugned order passed by the learned JMFC and on a perusal of the evidence of Shri Kundan Kumar Singh (D.W.1)- Manager, Union Bank of India, it is revealed that the cheque (Ex.P/5) was issued against the current account No.5273010100503096 of Pushpshree Medical Store and its proprietor is Jitendra Kumar Verma. The cheque was drawn by him but the applicant instead of issuing any notice to Jitendra Kumar Verma, initiated all the proceedings including issuance of notice against Devendra Kumar Verma. As cheque in question was not issued by Jitendra Kumar Verma and it is not of his account.
The learned JMFC has not committed any error in dismissing the application under Section 319 of the Cr.P.C. as giving of notice under Section 138(b) of N.I Act is the first and foremost requirement of initiating the complaint under section 138 of the Negotiable Instruments Act. Therefore, no fault is visible in the impugned order passed by the learned JMFC.
This petition being devoid of merit, is hereby dismissed.
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2023 (2) TMI 1303 - DELHI HIGH COURT
Taxability of income India - Royalty receipts - income earned from licensing/sale of software - subscription receipts against cloud services offered by the respondent/assessee - Tribunal has ruled that neither income earned from licensing/sale of software products nor subscription fee earned for providing cloud services, could be construed as royalty - revenue, says that the proposed questions are covered by the judgment of Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT]
HELD THAT:- We are as informed by Appellant that a review petition has been filed which is pending consideration.
Accordingly, the appeal is closed as no substantial question of law arises for our consideration albeit, with the caveat that in case the appellant/revenue were to succeed in the review petition, parties will abide by the decision rendered therein.
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2023 (2) TMI 1302 - ANDHRA PRADESH HIGH COURT
Validity of remand order - Revenue states that the Tribunal went wrong in setting aside the order passed by the Tribunal to the extent of remanding the matter - HELD THAT:- A perusal of the order passed by the Sales Tax Appellate Tribunal, in clear and unequivocal terms, reveals that the Tribunal after extensively discussing various issues and taking into consideration the relevant provisions of the Act passed the order under challenge, by setting aside the portion to the extent of remand by assigning cogent and convincing reasons. As per Section 22(1) of the Act, the Tax Revision case lies to this Court only on question of law.
In the considered opinion of this Court, no question of law could be pointed out by the petitioner in the present Revision - this Court is not inclined to meddle with the well-articulated order passed by the Tribunal, which is impugned in the present Revision.
This Tax Revision Case is dismissed.
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2023 (2) TMI 1301 - SC ORDER
Fraudulent trading - Preferential transactions - Undervalued transactions - Extortionate transactions - it was held by NCLAT that 'It is very much clear that it is the intention to defraud creditors at that stage Section 66 is applicable. This section empowers the Adjudicating Authority to pass an order for recovery from such fraudulent parties as contribution to the assets of the CD' - HELD THAT:- There are no merit in this appeal. Admission is refused and the civil appeal is, accordingly, dismissed.
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2023 (2) TMI 1300 - SC ORDER
Seeking post-arrest bail which was declined by the High Court - charges has not been framed so far - HELD THAT:- No interference is required at this stage - However, the petitioner is at liberty to renew his application for bail after framing of charge/discharge, as the case may be, before the Trial Court. If such an application is filed, the same may be decided on its own merits without being influenced by the observations made by the High Court under the order impugned.
SLP dimissed.
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2023 (2) TMI 1299 - DELHI HIGH COURT
Challenge to issuance of the LOC against petitioner - siphoning of funds - Petitioner submits that the Petitioner is not a beneficiary of any of the amounts the allegations of which have been raised against Shilpi Cable and its promoters - whether the Look Out Circular (LOC) issued against the Petitioner is liable to be quashed? - HELD THAT:- The modus operandi as per the SFIO, was that Shilpi Cables would supply goods to foreign entities who would then default in making payments, as a result of the same, a large number of dues are outstanding in the books of accounts of Shilpi Cables. The funds for trading by Shilpi Cables were provided by secured financial creditors of Shilpi Cables. It is further stated that this trading exercise was carried out by Shilpi Cables for more than five years from the years 2013-2014.
Further, as per the latest report dated 28th December, 2021 filed before the NCLT by the liquidator, the claims of financial creditors of Shilpi Cables is to the tune of Rs. 1,770 crores and only around Rs. 6 crores were released by the sale of assets. The aforementioned facts reveal that the SFIO is still investigating into the conduct of Shilpi Cables, its various group companies both in India and abroad. The role of promoters/management/employees of Shilpi Cables relating to the said is also being investigated.
The Petitioner has been called by the SFIO on several occasions in the course of the investigation. Some of the statements made by the Petitioner have also been placed on record. The Petitioner has been confronted with several documents. A perusal of these statements and documents shows that the maze of companies, the transactions and the substantial amount of money which is owed to public financial institutions and banks, would require deeper and further investigation. The investigation by the SFIO is recent as compared with the substantial volume of documents, global network of entities involved and amount of funds that are involved. The investigation has commenced only in September, 2020 and a substantial period was also during the pandemic. In a case of this nature where several foreign entities are involved, the collection of information and investigation could take some time.
In the present case, there is no challenge to the OM of 2010 or the OM of 2021. The entire immediate family of the Petitioner lives outside India. As per the Petitioner, apart from one flat in Sarita Vihar, he does not have any assets. His wife is also accompanying him on his foreign travel. Thus, the question as to whether the Petitioner would pose a flight risk and adversely affect the investigation would have to be considered. From the submissions made by the ld. Counsel for the SFIO, it is clear that the Petitioner would still be required for the purposes of investigation. Until the conclusion of the investigation it cannot be presumed that the Petitioner would not be charged with a cognizable offence.
The Petitioner did not merely play a role in the management and administration of Shilpi Cables but, being an auditor also owed a duty to report any shortcomings or misconduct within the company. Thus, the Petitioner cannot be completely absolved of responsibility merely on the ground that he was a mute spectator. Persons like the Petitioners who hold positions of responsibility in such companies do not merely owe a duty to their employer but also owe a duty to the role that they play, especially, if they are involved in crucial role such as auditing. There is a clear possibility, in the facts of this case that the Petitioner may not return to India as his entire immediate family resides abroad. He has not shown any assets in India and thus his travel is likely to impede the investigation.
As the funds amounting to approximately Rs. 1,400-Rs. 1,700 crores belonging to public sector banks and financial institutions are at stake, it would be in the larger public interest as also in the economic interest of India to not exercise discretion in favour of the Petitioner. Thus the LOC against the Petitioner is not liable to be quashed, at this stage.
The Court is not persuaded to exercise its extraordinary writ jurisdiction under Art. 226 of the Constitution of India - Petition dismissed.
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2023 (2) TMI 1298 - PUNJAB AND HARAYANA HIGH COURT
Rejection of Registration application u/s 12AA and u/s 80G(5)(vi) - application u/s 12AA rejected on the ground that the assesee trust has been formed by the settler for the purpose of carrying out its CSR activities and also rejected application u/s 80G (v) holding that, the application is void ab initio in terms of provisions of Rule 11AA - HELD THAT:- Application for grant of registration was dismissed by the Commissioner and the Tribunal has recorded its satisfaction as the trust fulfills following two basic conditions for grant of registration under Section 12AA of the Act, 1961:-
1. The object of the trust
2. the genuineness of the activities of the trust/institution.
The Commissioner was not to examine with respect to genuineness of the activities of the trust and whether the trust, if transfers fund to another charitable society, can be given exemption under Section 11 of the Act, 1961. This power is restricted only to the Assessing Officer.
Hence, in the present case, no useful purpose would be served to remand the matter back to the Commissioner to pass appropriate orders of registration of the trust under Section 12AA of the Act, 1961. The Tribunal, thus, has rightly directed CIT to grant registration under Section 12AA of the Act, 1961 and also approval under Section 80 G(5)(vi) of the Act, 1961 to the assessee. Decided against revenue.
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2023 (2) TMI 1297 - CESTAT MUMBAI
Refund in cash - refund claim in respect of the CVD and SAD paid for regularization of imports subsequent to introduction of GST regime - Shortfall in the fulfillment of export obligation - absence of specific legal provision under Section 142(3) of the CGST Act, 2017 read with Section 11B of the Central Excise Act, 1944 to grant refund - HELD THAT:- Admittedly the CVD and SAD against which the appellant have filed these refund claims were paid during the months of April and May 2018. On the date of payment of duty there was no scheme of CENVAT Credit in vogue. Neither the amount for which the appellants are seeking the refund claim was in dispute before any authority, tribunal or court of law. The amounts sought as refund was paid by the appellant as directed by the DGFT for the redemption of the Advance Authorizations issued to the appellant. Admittedly appellant failed to fulfill the export obligations as per the advance authorizations issued to them within the stipulated time of eighteen months from the date of advance authorization.
It is well evident that on the date of challan evidencing the payment of duty against which the appellants claim the CENVAT Credit, is after 1st July 2017, the date when the CENVAT Credit Scheme was rescinded. In absence of any scheme of CENVAT Credit Scheme on the date of payment of duty as above the claim to CENVAT Credit cannot be there. Indirectly by claiming that the they are not in position to claim CENVAT Credit, appellant has sought for the refund of the duties paid by them for nor non fulfillment of the obligation under advance authorization issued to them.
Reliance can be placed in the case of DEVENDRA KUMAR VERSUS STATE OF UTTARANCHAL & ORS. [2013 (7) TMI 1115 - SUPREME COURT] where it was held that 'A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation.'
By the application of the principles as above well known in law and reiterated by the Hon’ble Apex Court, the argument of the appellant cannot be accepted that the refund claim made by them shall be permissible in terms of Section 142 (3) of the CGST Act, 2017 read with Section 11 B of the Central Excise Act, 1944.
The decision of Hon’ble Punjab and Haryana High Court in case of 2020 (32) GSTL 726 [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] as affirmed by Hon’ble Supreme Court in UNION OF INDIA & ORS. VERSUS ADFERT TECHNOLOGIES PVT. LTD. [2020 (3) TMI 188 - SC ORDER], is distinguishable as the said decisions is in case of non filing or incorrect filing of prescribed statutory form i.e. Tran-1 by the stipulated last date 27.12.2017, to carry forward the credit available in the book of accounts of the of the persons registered under Central Excise Act, 1944 or VAT Act. Hon’ble High Court has directed that such person may be permitted to file or correct the Tran-1 already filed by them on or before 30th November 2019. The issue in the present appeal is not in respect of any such credit which was available in the book of accounts of the appellant on the appointed date i.e. 01.07.2017. Hence the said decision cannot be applied to the facts of present case.
There are no merits in the submissions or the alternate submissions made by the appellant in support of their refund claim - appeal dismissed.
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2023 (2) TMI 1296 - DELHI HIGH COURT
Validity of re-assessment - notice issued u/s 148 [i.e., the old regime] - order passed u/s 148A(d) - two consequetive proceedings - HELD THAT:- Both Appellant and respondent say that both proceedings cannot go on, as indicated in our order [2023 (1) TMI 1372 - DELHI HIGH COURT]
Accordingly, the impugned notices and order are quashed. In view of the aforesaid, counsel for the parties agree that the order passed u/s 270A of the Income Tax Act 1961 and the order titled “Closure of duplicate assessment/re-assessment e-Proceedings-Reg” shall dissolve.
As is obvious, the fate of the petitioner will be determined as per the original assessment order dated 28.03.2022.
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2023 (2) TMI 1295 - SC ORDER
Seeking the rectification of the order - classification of goods - Populated Printed Circuit Boards (PPCB) for DWDM Equipment – Photonic Service Switch - Small Factor Pluggable (SFP) - exemption under Notification No. 24/2005-Cus dated 1.3.2005 - Revenue submitted that the classification as has been done in the impugned order, has been accepted by the Department-Revenue - HELD THAT:- The civil appeals are dismissed.
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2023 (2) TMI 1294 - ITAT MUMBAI
Validity of assessment order u/s 144C (1) without passing the draft assessment order - HELD THAT:- The Hon’ble Bombay High Court in the case of Exxon Mobil Company (P.) Ltd. [2022 (4) TMI 1556 - BOMBAY HIGH COURT] in a recent decision reiterated the legal requirement of passing draft assessment order in proceeding u/s 144C of the Act arising out of remand from the Tribunal. The Hon’ble High Court held that where Tribunal remanded the matter to give effect to transfer pricing issue, assessee’s case would be eligible u/s 144C of the Act and the AO was required to pass draft assessment order before issuance of final assessment order.
Similar view was taken in the case of Turner International India (P.) Ltd. [2017 (5) TMI 991 - DELHI HIGH COURT] held that failure of AO to adhere to mandatory requirement of section 144C (1) of the Act, where the final assessment order has been passed without draft assessment order, such final assessment order shall be invalid.
AO was required to adjudicate the issue of amount received under International Sales and Marketing Agreement afresh in line with the directions of the Tribunal. It was incumbent upon the AO to follow the procedure laid down u/s 144C of the Act, i.e. to first pass the draft assessment order. In the facts of the case and the decisions referred above, we hold that assessment order passed by AO without passing draft assessment order is invalid and unsustainable, ergo, the same is liable to be quashed. We hold and direct accordingly.
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2023 (2) TMI 1293 - DELHI HIGH COURT
Accrual of income in India - Royalty receipts - subscription received towards Cloud Services - income earned from licensing/sale of software and subscription received against cloud services offered by assessee - scope of Indo-USA DTAA - Whether the Ld. ITAT erred in holding that licensing of computer is copyrighted article and not copyright and accordingly the sale of software is in nature of business income and not taxable as royalty under Section 9(1)(vi) of Income Tax Act, 1961 and absence of PE in India, it is not taxable under Article 7 of India-USA DTAA?
- HELD THAT:- Tribunal has ruled that neither income earned from licensing/sale of software products nor subscription fee earned for providing cloud services, could be construed as royalty.
As revenue, says that the proposed questions are covered by the judgment of the Supreme Court rendered in Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT] - We are also informed that a review petition has been filed which is pending consideration.
Accordingly, the appeal is closed as no substantial question of law arises for our consideration, albeit, with the caveat that in case the appellant/revenue were to succeed in the review petition, the parties will abide by the decision rendered therein.
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2023 (2) TMI 1292 - ITAT KOLKATA
Bogus share capital - unexplained cash credit u/s. 68 - burden to prove - assessee submitted that all the relevant details and evidence to explain the identity, creditworthiness and genuineness of the transactions were placed on record and the assessee had fully discharged its initial burden casted u/s. 68 - HELD THAT:- We note that Ld. AO without even going through and discussing the details submitted by the subscriber companies, insisted for personal appearance to prove the identity, creditworthiness of the subscribers and the genuineness of the transactions. Admittedly, it is a fact on record that director representing four share subscriber companies attended before the ld. AO and furnished the required details. To our mind, Ld. AO could have taken an adverse view only if he could point out the discrepancies or insufficiency in the evidence and details furnished in his office and also as to get further investigation was needed by him by way of recording of statement of the directors of the assessee and the subscriber companies.
We draw our force from the decision of Paradise Inland Shipping Pvt. Ltd. [2017 (11) TMI 1554 - BOMBAY HIGH COURT] wherein it was held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case.
From the perusal of the paper book and the documents placed therein, it is vivid that all the share applicants are (i) income tax assessees, (ii) they are filing their income tax returns, (iii) share application form and allotment letter is available on record which were filed in response to notice u/s 133(6), (iv) share application money was made by account payee cheques, (v) details of the bank accounts belonging to share applicants and their bank statements, (vi) all the share applicants are having substantial creditworthiness represented by their capital and reserves.
We find that assessee has discharged its onus to prove the identity and creditworthiness of the share subscribing companies and the genuineness of the transactions towards sum received during the impugned year. Accordingly we set aside the order of the ld. CIT(A) and direct the ld. AO to delete the addition made towards share capital and share premium u/s. 68 - Assessee appeal allowed.
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2023 (2) TMI 1291 - BOMBAY HIGH COURT
Recovery of SARFAESI dues - priority of claim over the claim of Respondent – Custom Authorities - Property under attachment of the Custom Authorities - HELD THAT:- The overriding effect of section 142A as regards the duty, penalty and interest under the Customs Act, 1962 is subject to the Central Act, State Acts provided in this section itself, which includes the SARFAESI Act. Therefore, the claim of Respondent–Custom Authorities for the overriding charge under section 142A of the Customs Act, 1962 itself makes an exception in respect of the SARFAESI Act. Therefore, learned counsel for the Petitioner is right in contending that the Petitioner would have the overriding priority over the charge of Respondent– Custom Authorities.
Petitioner states that the Petitioner bank would proceed to take measures under the SARFAESI Act and if any amount remains balance after satisfying the claim of Petitioner, the Petitioner is under a duty to distribute the balance amount as per the claims received. The statement made by learned counsel for the Petitioner on instructions is accepted - the Petitioner is permitted to proceed to take measures under the SARFAESI Act in respect of the property in question. The Petitioner–Bank will, if such a request is received from the Respondent–Custom Authorities to inform them about the action taken by the Petitioner and the quantum of sale proceeds, will give necessary information to the Respondent–Custom Authorities.
The writ petition is disposed off.
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2023 (2) TMI 1290 - ITAT DELHI
Reopening of assessment u/s 147 - Reason to believe - HELD THAT:- As the facts and circumstances of the present case are identical to the facts of the case in the case of RMG Polyvinyl (I) Ltd. [2017 (7) TMI 371 - DELHI HIGH COURT] and Shri Omvir Singh vs. ITO [2020 (6) TMI 822 - ITAT DELHI] therefore we are inclined to hold that the AO initiating reassessment proceedings mainly on the incorrect and wrong basis that the assessee has not filed its return of income for A.Y. 2011-12 and thus the AO did not assume valid jurisdiction to initiate reassessment proceedings u/s. 147 and to pass impugned reassessment order u/s. 143(3) r.w.s. 147 - Assessee appeal allowed.
Addition u/s 68 - unexplained cash deposited to the bank accounts of the assessee - HELD THAT:- When the assessee is in the business of exchange of old Torn/Soiled/Mutilated currency noted then the modus operandi of business would be the same as stated by the learned counsel of the assessee that is the assessee has to deposit old Torn/Soiled/Mutilated notes to the bank account and he is required to withdraw amounts from the bank account for the purpose of giving the same in exchange to its customer and clients. Therefore we declined to approve basis taken by the AO for making addition of entire cash deposited to the bank accounts of the assessee and ignoring the high amount of cash withdrawn by the assessee for the purpose of its business.
Therefore addition made by the AO and upheld by the Ld. CIT(A) has no legs to stand. Our above noted conclusion also gets strong support from the judgement of Sona Electric Co. [1984 (2) TMI 37 - DELHI HIGH COURT] and Mrs. Deepali Sehgal [2014 (9) TMI 1073 - ITAT DELHI] and Smt. Parminder Kaur Matharoo [2022 (11) TMI 779 - ITAT DELHI] to hold that the addition made by the AO u/s 68 of the Act is not sustainable - Assessee appeal allowed.
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2023 (2) TMI 1289 - ORISSA HIGH COURT
Benefit of Section 10(38) - Assessee to file revised returns if he omitted to make a claim - denial of an opportunity to cross examine the entry providers - Whether after making certain statements in the survey the Assessee not claiming exemption u/s 10(38) at the stage of the assessment proceedings, could be the Assessee turned around and make such claim of wanting to cross-examine persons make adverse statements against the Assessee at the stage of the appeal before the ITAT”?
HELD THAT:- Having heard Department (Appellant) and having perused the impugned orders of the AO, CIT(A) and the ITAT, the Court finds that both the grounds viz., the claim for benefit of Section 10(38) and denial of an opportunity to cross examine the entry providers, turned on facts. ITAT was justified in accepting the plea of the Assessee that the failure to adhere the principles of natural justice went to the root of the matter. Also, the CBDT circular that permitted to the Assessee to file revised returns if he omitted to make a claim was also not noticed by the AO.
ITAT committed no error in concurring with the view of the CIT(A) and in dismissing the Revenue’s appeal. No substantial question of law arises from the impugned order of the ITAT that calls for interference by this Court.
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2023 (2) TMI 1288 - SC ORDER
Maintainability of petition - Initiation of CIRP - Operational Creditor or not - proceedings before the NCLT are in rem or not - HELD THAT:- In order to restore the appeal before the NCLAT, this Court must be satisfied that the appellant is in a position to meet the threshold requirement which is imposed by the terms of Section 7 for the initiation of the CIRP. Absent that demonstration, the appeal is not allowed at the behest of the appellant and restore the proceedings, the effect of which would be to revive the CIRP against the company. In the event that the appellant seeks to invoke the jurisdiction of the NCLT in terms of the provisions of Section 7 of the IBC, the appellant would be at liberty to do so in which case, the observations in the present order will not stand in its way as any adjudication on the merits or maintainability of such an application. The order of the NCLAT dated 13 December 2022 disposing of the appeal filed by the appellant, namely, BPTP SPACIO PARK SERENE FLAT ALLOTTES WELFARE ASSOCIATION (BAWA) VERSUS M/S. BPTP LTD. & ANR. [2022 (12) TMI 1504 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI] shall not come in the way of the appellant in taking recourse to its remedies before the NCLT in fresh proceedings, if so advised.
In the alternative, since the appellant has a consent decree of the NCDRC, it would be at liberty to execute it in accordance with law. The execution proceedings before the NCDRC are expedited and may be taken up for early disposal.
Application disposed off.
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2023 (2) TMI 1287 - DELHI HIGH COURT
Calling witness for the purpose of examination - jurisdiction under Section 311 Cr.P.C. was properly exercised or not - HELD THAT:- The object of Section 311 Cr.P.C is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. A bare reading of Section 311 would show that this section vests in the courts the power to summon any person as a witness or to recall and reexamine any witness at any stage of the inquiry, trial, or other proceedings under the code if his evidence appears to be essential for the just decision of the case. It will not be an improper exercise of the powers of the court under section 311 Cr.P.C. to summon a witness merely because the evidence supports the case of the prosecution and not that of the accused - The function of the criminal court is to administer justice and not to evaluate the parties on the basis of their performance.
In the present case, the allegations include that of the forgery of a letter of the then Minister and thus are quite serious in nature. It is correct that this witness had not appeared before the Court despite having opportunities been given. There may also be a possibility that there might be some lethargy on the part of the prosecution but it is the duty of the Court to ensure that justice should be done and a criminal trial should conclude with the desired objective of the quest for justice. Suppose this witness is not examined, the Court or this case shall always be deprived of some material facts which could have been produced.
Taking into account the timeline, which shall expire in the middle of April, the CBI is directed to examine PW C. Edmonds Allen through video conferencing on the date set up by the learned Trial Court.CBI shall not be given more than two opportunities for examining this witness. If the witness fails to appear on these two dates or CBI fails to examine (except for some technical reason), the right to his examination shall automatically stand closed. The learned Trial Court shall also give an opportunity to the defence for the statement of the accused and the defence witnesses, if any, on a day-to-day basis. The Learned Trial Court may fix a schedule accordingly to ensure that the trial is completed within the time frame given by the Hon'ble Supreme Court.
The present petition along with the pending applications are allowed and disposed of.
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2023 (2) TMI 1286 - CESTAT MUMBAI
Violation of principles of natural justice - non-speaking adjudication order - though the said order has recorded the submissions made by the appellant in great detail, but no findings were recorded therein countering the submissions made in the reply to the show cause notice as well as during the course of adjudication proceedings - HELD THAT:- It is found that the submissions made by the appellant during the course of adjudication proceedings were recorded therein from pages 19 to 29, but the findings in the impugned order are only confined to few pages, wherein the submissions made by the appellant had not been captured fully for an effective order as contemplated under the statute. Thus, the principle of natural justice have been violated in this case, for which the matter should go back to the original authority for a proper fact finding on the issues involved in this appeal.
The appeal is allowed by way of remand to the original authority for deciding the issues involved in this case.
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