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Showing 41 to 60 of 1513 Records
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2022 (7) TMI 1474 - ITAT DELHI
Validity of Draft assessment order u/s 144C(1) - time limit of completion of assessment - benefit of India-Cyprus DTAA denied - income of the assessee was subjected to tax @ 20% u/s 115A Assessee stated that there is no variation in the income of the assessee, therefore, AO was not justified in passing draft assessment order u/s 143(3) r.w.s 144C(1) - HELD THAT:- There is no variation in the income returned by the assessee and returned income has been assessed as such. It is also not in dispute that the assessee is an eligible assessee in terms of section 144C(15)(b)(ii) of the Act, but then, there is no change in the figure of income returned by the assessee vis a vis income assessed by the Assessing Officer.
As pointed out by the ld. DR, Finance Bill 2020 proposes to make issuance of draft assessment order in the case of eligible assessees mandatory even when there is no variation in income or loss returned by the assessee but this amendment may take effect from 01.04.2020.
We hold the assessment order to be time barred and since the assessment order itself has been held to be time barred, all the issues raised by the Revenue in its appeals which deal with the merits of stand taken by the Assessing Officer in the assessment order become academic and infructuous and require no separate adjudication.
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2022 (7) TMI 1473 - SUPREME COURT
Maintainability of appeal - Validity of approval of resolution plan of corporate debtor - HELD THAT:- There are no cogent reason to entertain these appeals. The judgment impugned does not warrant any interference.
Appeal dismissed.
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2022 (7) TMI 1472 - DELHI HIGH COURT
Reopening of assessment u/s 147 - ‘change of opinion’ - HELD THAT:- A perusal of the paper book reveals that the issue which is sought to be reopened in the proceeding u/s 148 had been discussed, deliberated and verified by the AO at the time of original assessment proceedings. It seems that the AO had applied its mind and then passed the assessment order in favour of the petitioner.
While passing the impugned order u/s 148A(d) AO has wrongly concluded that the assessee had not disclosed the sale of the property and long term capital gain in the ITR filed or was accepted by the AO.
Keeping in view the aforesaid, the impugned order and notice issued u/s 148A(d)/148 are set aside and the matter is remanded back to the AO for fresh consideration in accordance with law within four weeks.
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2022 (7) TMI 1471 - CESTAT MUMBAI
Abatement of appeal - NCLT has approved the resolution plan in the insolvency proceedings in regard to the corporate debtor - HELD THAT:- From the date of approval of the resolution plan by the NCLT, the appeal filed by the applicant has abated and CESTAT has become functus officio in the matters relating to this appeal.
Taking note of the fact that the NCLT has approved the resolution plan in the insolvency proceedings in regard to the corporate debtor, the appeals before this Tribunal are abated.
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2022 (7) TMI 1470 - SC ORDER
Maintainability of petition - The issues involved in these writ petitions are similar and akin to those involved in other petitions pending in this Court questioning the validity of Sections 95(1), 96(1), 97 (5), 99 (1), 99(2), 99(4), 99 (5), 99 (6) and 100 of the Insolvency and Bankruptcy Code, 2016, wherein notices have been issued with interim orders.
HELD THAT:- Issue notice, returnable in six weeks - Tag with W.P(C)No.307 of 2022.
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2022 (7) TMI 1469 - SUPREME COURT
Alleged massacre of Tribals - It is the case of the writ Petitioners that the Chhattisgarh Police, Special Police Officers (SPOs), the activists of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh Government) and the Paramilitary Forces consisting of the CRPF and the CoBRA Battalions are responsible for the alleged brutal massacre of the tribals in the respective villages - HELD THAT:- Section 340 of the Code of Criminal Procedure came up for the consideration before a three-Judge Bench of this Court in the case of Pritish v. State of Maharashtra [2001 (11) TMI 1017 - SUPREME COURT]. In Pritish, this Court was called upon to consider, whether it is mandatory on the part of the court to make a preliminary inquiry Under Section 340 of the Code of Criminal Procedure before filing a complaint Under Section 195 of the Code of Criminal Procedure and further, whether the court is required to afford an opportunity of hearing to the person against whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be Accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory.
In M.S. SHERIFF VERSUS THE STATE OF MADRAS AND OTHERS [1954 (3) TMI 76 - SUPREME COURT], a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish observing that the court, when decides to make a complaint Under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate.
The essential ingredients for invoking Section 211, Indian Penal Code are that the complaint must have falsely charged a person with having committed an offence. The complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person. This complaint must have been given with an intention to cause injury to a person - a false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion.
Application disposed off.
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2022 (7) TMI 1468 - BOMBAY HIGH COURT
Money Laundering - scheduled offence or not - grant of pardon by the competent Special Court taking cognizance of the offence of money laundering on the basis of the same facts and allegations/material in the CBI case - HELD THAT:- Issue notice to the respondents, returnable on 22nd August 2022. Mr. Thakare waives notice on behalf of the respondent No.1-CBI. In addition to Court notice, petitioner to serve the respondent No.2 by Advocate's notice and file an affidavit of service before the returnable date.
The investigation is in progress and that at this stage, he is unable to make a statement whether the petitioner can be made an accused or not, it is deemed appropriate to pass the interim order - petitioner is directed to attend to the summons issued by the respondent No. 1-CBI - In the meantime, till the next date, no coercive steps to be taken as against the petitioner in connection with RC 1(E)/ 2018/CBI/BS&FC/MUMBAI, till the next date.
Stand over to 22nd August 2022.
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2022 (7) TMI 1467 - ORISSA HIGH COURT
Rejection of bail application - Money Laundering - twin conditions contained in section 45 of 2000 PML Act satisfied or not - HELD THAT:- Considering the nature of accusation against the petitioner, the punishment prescribed for the offence under which the charge sheet has been submitted and the fact that the petitioner has already undergone half of the maximum substantive sentence prescribed for the offence, while not inclining to release the petitioner on bail on merit, the petitioner released on interim bail for a period of six months from the date of release. The petitioner shall surrender before the learned trial Court immediately on the expiry of the six months period.
The petitioner is released on interim bail subject to conditions imposed - application disposed off.
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2022 (7) TMI 1466 - ITAT MUMBAI
Addition u/s 68 - unexplained credit - AO disregarded the share premium received on shares - HELD THAT:- AO has accepted the paid up share capital amount as genuine and on other hand disregarded the share premium received on shares as it does not satisfy the ingredients of Sec. 68 though the source of transaction is the same person and there is no rationality of bifurcation of the source. We found that the CIT(A) has admitted the additional evidence and also provided an opportunity to the A.O. to make the comments and the assessee has filed the rebuttal/ rejoinder.
Even before us, the Ld.DR has nothing specific to say except placing reliance on the stand of the AO. However, once the issuance of share capital is accepted as genuine, it cannot be open to the AO to treat share premium as unexplained credit u/s 68 but the A.O. has done. A composite receipt of share application money cannot be partly explained and partly unexplained u/s 68 - CIT(A) for this reason was justified in deleting the impugned addition u/s 68 - Decided against revenue.
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2022 (7) TMI 1465 - CALCUTTA HIGH COURT
Refund of the excess amount beyond 10 % of the demand arising out of the original order - HELD THAT:- The facts remain that the respondent authority concerned has recovered the amount of demand from the petitioners more than 10% of the demand which finally arises from the order of the Commissioner after reduction, which action is not legally sustainable in view of the Finance Act, 1994 read with Section 35F of the Central Excises and Salt Act, 1944 read with Circular No. 1053/2/2017-CX, dated 10.3.2017 F.No.96/1/2017-CX.I dated 10th March, 2017 issued by the Central Board of Excise & Customs, New Delhi.
Petition disposed of by directing the respondents Authority concerned to refund the money to the petitioner in excess of 10% of the aforesaid demand arising after merger with the order of Commissioner of Appeals, within four weeks from date with statutory interest.
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2022 (7) TMI 1464 - SUPREME COURT
Grant of Interim Bail - tweets which have been put out by the Petitioner have spread hate or not - HELD THAT:- The machinery of criminal justice has been relentlessly employed against the Petitioner. Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the Petitioner was subjected to multiple investigations across the country. Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action. Resultantly, he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment. It also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the Petitioner.
The raison d'etre of the powers of arrest in relation to cognizable offences is laid down in Section 41. Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the Code of Criminal Procedure as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual.
Merely because the complaints filed against the Petitioner arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made. A blanket order directing the Petitioner to not express his opinion - an opinion that he is rightfully entitled to hold as an active participating citizen - would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would tantamount to a gag order against the Petitioner. Gag orders have a chilling effect on the freedom of speech - Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession.
Petition allowed in part.
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2022 (7) TMI 1463 - CALCUTTA HIGH COURT
Revision u/s 263 - validity of assessment order u/s 143(3) - deduction of amount in assessment order u/s 143(3) which was claimed by the assessee-company on account of foreign exchange fluctuation loss on O/S ECB loan in the computation of income made as per provision of Income Tax Act - Whether ITAT has erred in terming the Marked to Market Loss on foreign currency swaps is a “ascertained liability” which is contrary to facts and law in view of clause 17(k) of the Tax Audit Report? - HELD THAT:- It is not disputed before the revenue that the substantial questions of law which have been suggested by the revenue were considered by this Court in the case of Principal Commissioner of Income Tax-I, Kolkata vs. Price Waterhouse Coopers Pvt. Ltd. 2021 (12) TMI 1400 - CALCUTTA HIGH COURT] allowing the assessee’s claim of foreign exchange fluctuation loss on mark to market basis. Decided against revenue.
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2022 (7) TMI 1462 - BOMBAY HIGH COURT
Seeking rejection of plaint on the ground that the Suit is barred by limitation - Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 - HELD THAT:- It can be seen from the averments in the plaint, in particular paragraphs 27, 28, 29, 33 and 35 that the Plaintiff had challenged the impugned Conveyance Deeds on two main grounds one that the Plaintiff thought he was executing documents in furtherance of and for transferring his right, title and interest in favour of Defendant Nos.1 to 7 and thought that even Defendant Nos.8 to 12 are also transferring their rights in favour of Defendant Nos.1 to 7 simultaneously. The other ground of challenge to the Conveyance Deeds is that though Defendant Nos.10 to 12 approached the Plaintiff for settlement and agreed to pay consideration price for purchasing the suit properties, Defendant Nos.10 to 12 had not paid full consideration and hence there was no settlement.
From reading of the plaint, it is apparent that the Plaintiff was aware that he was executing the documents/Conveyance Deeds to transfer his rights in the suit property in favour of another. He was thus conscious that the character of the documents was one, by which he was to receive consideration and he would to transfer his right, title and interest favour of another.
If the Plaintiff were at all aggrieved by the Conveyance Deeds as to there being fraud as to the contents of the Conveyance Deeds, the Plaintiff was obligated to file a Suit for setting aside of the conveyance deeds and for which limitation of three years under Article 59 of the Limitation Act would be applicable. At the latest the present suit should have been filed within a period of three years from such knowledge which would be at the latest three years from 14.02.2017 when the Plaintiff had filed the affidavit in reply to the Chamber Summons and the three years period expired on 15.02.2020. It is clear from the decisions relied upon by the Plaintiff, in particular NINGAWWA VERSUS BYRAPPA AND ORS. [1968 (1) TMI 51 - SUPREME COURT] and Dularia Devi [1990 (3) TMI 381 - SUPREME COURT] that where there is no fraud with regard to character of the documents, but fraud with regard to contents of the documents, the documents are voidable and accordingly Suit will have to be filed within the time prescribed under Article 59 of the Limitation Act.
The Plaintiff’s contention that since the impugned Conveyance Deeds are void ab initio there is no need for their cancellation and Article 59 of the Limitation Act would have no application cannot be accepted. The prayer in the plaint of possession clearly would follow the Conveyance Deeds having to be set aside and absent the setting aside of the Conveyance Deeds, the Suit for possession cannot stand on its own. Hence, Article 65 which provides a period of limitation of 12 years in the event the Plaintiff is seeking possession is not applicable and cannot save the Suit from being barred by the law of limitation. The decisions relied upon by the Defendants where the Plaintiff would have to sue for cancellation of the document and Article 59 of the Limitation Act being applicable are apposite.
The learned Counsel for the Defendants are are correct in their submission that in the present case the issue raised by the Plaintiff in the present Suit is only as to “fraud with regard to the contents of the document” which in light of the settled law would require the Plaintiff to seek appropriate relief for setting aside and/or cancelling the document which in the present case are the Deeds of Conveyance, and that too within the prescribed period of three years from their learning of such alleged fraud with regard to the contents of the document. Further, it is well settled that fraud with regard to the contents of the document only make a document voidable and would have to be avoided by the person seeking to do the same - the decision of the Supreme Court in VEENA SINGH (DEAD) THROUGH L.R. VERSUS THE DISTRICT REGISTRAR/ADDITIONAL COLLECTOR (F/R) AND ORS. [2022 (5) TMI 1578 - SUPREME COURT] would not support the Plaintiff’s case.
Plaintiff’s have in the Plaint admitted that it would be necessary for the Plaintiff to seek cancellation of the impugned Conveyance Deeds. The Plaintiff cannot rely on the suspension of limitation applicable to Suits by the Supreme Court in its orders in light of corona virus pandemic since March, 2020. This is in view of my finding that the present Suit would have to be filed latest by 15.02.2020 - Section 31 of the Specific Relief Act would be applicable for setting aside of the Conveyance Deeds. The period of limitation would undoubtedly be a period of three years for setting aside the impugned conveyance deeds and which period has in my view expired, prior to the filing of the present Suit.
The Plaint filed in the captioned Suit is rejected under Order VII Rule 11(d) on the ground that the Suit appears from the statement in the plaint to be barred by the law of limitation - Application rejected.
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2022 (7) TMI 1461 - ALLAHABAD HIGH COURT
Classification of goods - toffee - liable to be taxed in schedule-V of U.P. Value Added Tax Act or in the category of sweetmeat and sugar product as mentioned in schedule-IIA at serial no.137? - HELD THAT:- While the Tribunal has specifically considered the sugar content in the product manufactured and sold by the assessee and the manufacturing process to reach the conclusion that the products were toffee manufactured by the assessee, in no situation, in the field of tax regime and laws, two persons can be treated differently for the purposes of rate of tax.
One commodity has to be charged to tax at one rate. The revenue having chosen to tax the same or similar commodity at the lesser rate in case of other dealers whether manufacturer or trader, it cannot be permitted to take a different view as that may introduce uncertainty and arbitrariness in tax regime, which is never permissible.
Revision dismissed.
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2022 (7) TMI 1460 - ITAT DELHI
Income taxable in India - taxability of receipts towards software and subscription - Royalty’/ ‘Fees for Technical Services '- AO had held the receipt to be royalty and taxed it @10% on the gross basis as per Article 12 in India-Netherland treaty - HELD THAT:- As decided in assessee own case [2022 (4) TMI 615 - ITAT DELHI] in order dated 08.04.2022 issue of software royalty was recently adjudicated by the Hon’ble Apex Court in the case of Engineering Analysis Center of Excellence Pvt. Ltd. [2021 (3) TMI 138 - SUPREME COURT] as analyzed various aspects of the issue taking into consideration end user license, Copy Right Act, and provisions contained in DTAA and the Income Tax Act and has laid down the parameters to test whether the receipt from sale of software would tantamount to royalty or not.
Therefore, in view of the above, the Assessing Officer is directed to carry out the necessary exercise in accordance with the directions issued by the Co-ordinate Bench in Assessment Year 2008-09 duly keeping in mind the ratio laid down by the Hon’ble Apex Court in the case of Engineering Analysis Center of Excellence Pvt. Ltd. vs. CIT (supra) and adjudicate the issue accordingly after giving due and proper opportunity to the assessee to present its case. Private limitedas held consideration end user license, Copy Right Act, and provisions contained in DTAA and the Income Tax Act and has laid down the parameters to test whether the receipt from sale of software would tantamount to royalty or not. No substantial question of law arises for our consideration in the present appeal.
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2022 (7) TMI 1459 - BOMBAY HIGH COURT
Reopening of assessment - notice issued after the expiry of period of four years - approval from competent authority - HELD THAT:- On a reading of Section 151 it is clear that a notice under Section 148 of the Act, 1961 cannot be issued after the expiry of period of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner was satisfied, on the reasons recorded by the A.O., that it was a ft case for the issue of such a notice.
In the present case, it is clear that assessment year under consideration was 2015-16 and, therefore, the notice impugned was admittedly beyond the four years period for which the approval ought to have been granted by any one of the aforementioned four authorities and not by the Joint Commissioner. It is clear that, the A.O. fell in error in holding that the case at hand fell within the four years period, from the end of the assessment year under consideration, which on the face of it appears to be erroneous. WP allowed.
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2022 (7) TMI 1458 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - valid Approval u/s 151 - notice was being issued beyond the four years period prescribed - HELD THAT:- Since the issue of grant of approval by an authority, as prescribed u/s 151 of the Act goes to the root of the matter, we wish to deal only with the said issue and hold that even in the present case, the approval ought to have been granted by either the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner and not by the Additional Commissioner of Income tax.
Since the notice was being issued beyond the four years period prescribed under the un-amended provisions of section 151(1) of the Act, it ought to have the satisfaction accorded by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner of Income Tax which is not so in the present case.
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2022 (7) TMI 1457 - CALCUTTA HIGH COURT
Unsatisfactory investigation - prayer for constituting the Special Investigation Team to investigate the offences - HELD THAT:- Hon'ble Supreme Court in the matter of W.N. Chadha [1992 (12) TMI 216 - SUPREME COURT] in paragraph 92 has held that the accused has no right to have any say as regards the manner and method of investigation and also has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing final report under Section 173(2) of the Code - In the matter of Arnab Ranjan Goswami [2020 (5) TMI 702 - SUPREME COURT], the Hon'ble Supreme Court has taken the view that the displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation of a conflict of interest against the police conducting the investigation must not delay the legitimate course of law and warrant the invocation of the extraordinary power of the Court to transfer the investigation to CBI.
Hence, in view of the aforesaid judicial pronouncement, it is not open to the appellant to raise a complaint against the direction of the learned Single Judge to constitute the SIT specially when no prejudice is shown to have been caused to the appellant on account of such a direction.
The investigation is apparently delayed in the present case and Hon'ble Supreme Court in the matter of DILAWAR VERSUS THE STATE OF HARYANA AND ORS. [2018 (5) TMI 2152 - SUPREME COURT] has held that no investigating agency can take unduly long time in completing the investigation and that speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution.
In the case of P.K. Palanisamy [2009 (7) TMI 1311 - SUPREME COURT] well-settled principle of law has been reiterated and non-mentioning of a provision does not invalidate the order if the Court or statutory authority had a requisite jurisdiction therefor - In the present case there is no issue of invalidation of order passed by the Judicial Magistrate dated 06.05.2022. Even otherwise if the proceedings were taken up before the Judicial Magistrate under Section 156(3) of the Cr.P.C. that would not take away right of the respondent No. 1 to file a writ petition seeking investigation by SIT because such a power does not exist with the Judicial Magistrate.
Thus, once the view taken by the learned Single Judge is found to be possible and proper view, then no case for interference is made out - there are no error in the order of the learned Single Judge and no ground for inference is made out - appeal dismissed.
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2022 (7) TMI 1456 - DELHI HIGH COURT
Taxability of foreign income in India - Royalty receipt - income earned from distributing of computer software in India - DTAA between India and USA - HELD THAT:- As considering the fact that the issue in dispute is squarely covered in favour of the assessee by the decision of Hon’ble Supreme Court in case of Engineering Analysis Centre of Excellence Pvt. Ltd. [2021 (3) TMI 138 - SUPREME COURT] amounts received from sale/supply of software licences and associated services are not taxable as royalty/FIS. Accordingly, he deleted the addition. Decided in favour of assessee.
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2022 (7) TMI 1455 - SUPREME COURT
Dishonest intention of cheating - Deceiving complainant and public at large under the guise of wrong information, that their Company is recognized by Reserve Bank of India - on taking deposit the amount of such deposit was not returned at the time of maturity and their deposit amount is misappropriated - HELD THAT:- There are concurrent findings of conviction arrived at by two Courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 of Criminal Procedure Code (CrPC) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law.
As per the settled legal position and after conviction by the Trial Court and the Appellate Court on filing the revision the High Court maintained the conviction upholding the findings of the two courts. The High Court found the finding recorded by the two Courts to serve the sentence consecutively by the appellant and the other co-accused were not correct, hence set aside and directed to run such sentence concurrently - the finding of fact as recorded by the Trial Court and the Appellate Court has rightly not been interfered while maintaining the conviction against the appellant.
There is no infirmity in the order passed by the High Court. Accordingly, the appeal is dismissed.
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