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Showing 61 to 80 of 1329 Records
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2023 (5) TMI 1269 - CESTAT KOLKATA
Refund claim - Service Tax paid on reverse charge basis for the GTA Services utilized by them during the period May 2013 to October 2013 - refund rejected on the ground that the products cleared by them are not in the category of food stuff and the refund claim is hit by ‘unjust enrichment clause’ - HELD THAT:- It is observed from the order passed by the lower Authorities that as submitted by the Learned Counsel they have not given proper consideration to the detailed certificate issued by the Chartered Accountant wherein he has clearly stated that (i) Cenvat Credit has not been taken by the Appellant (ii) The amount of refund claim filed, has been shown as amount receivable/dues from the Service Tax Department.
When such an important document has been filed, the officials are required to give proper consideration for the same and give a clear finding as to why the same was not considered as proper evidence towards ‘unjust enrichment clause’. They have failed to do so.
Coming to the argument of the Learned AR that the initial assessment was not disputed and the Appellant has not gone for re- assessment, in this case, this point will not arise. Here the Appellant is not service provider who has filed their self-assessment order under ST 3 Return. They are service recipients and are bound to pay the Service Tax on RCM basis. In the case of RCM, the recipient does not the assess the Service Tax component nor can he challenge the same by way of re-assessment.
It is deemed fit to remand the matter to the Adjudicating Authority for the following limited purpose:-
(i) The Appellant will produce the original copy of the Chartered Accountant’s Certificate dated 22/03/2014. They will also submit copies of their Balance Sheet from period 2010 to till the present financial year to substantiate their claim that this amount is still being shown as receivable/recoverable from the Service Tax Department.
(ii) The Adjudicating Authority is directed of confine himself to examine these two aspects and pass a considered decision without rising any further issue on account of any other document.
Appeal allowed by way of remand.
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2023 (5) TMI 1268 - DELHI HIGH COURT
Reopening of assessment u/s 147 - Allegation against the petitioner is that because of the activities carried out by it, the benefits available to it under Sections 11 and 12 may not be available - HELD THAT:- As referring to income and expenditure account of the AY in issue expenditure that has been registered by the petitioner is Rs. 67,49,006/-, against which an adjustment of unutilized amount under Section 11(1) Explanation 2 amounting to Rs. 2,59,903/- has been made. Thus, the net expenditure, which has been registered by the petitioner, is the figure that we have noticed above as the alleged escaped income, i.e., Rs. 64,89,103/-.
As a matter of fact, the petitioner has registered a net loss amounting to Rs. 6,54,461/-. Therefore, there is a misalignment, to say the least, between the purportedly escaped income, as indicated in the notice issued under Section 148A(b), and the order passed under Section 148A(d) of the Act.
Given the aforesaid backdrop, in our view, the matter requires further examination. Accordingly, issue notice. Counter-affidavit will be filed within eight weeks.
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2023 (5) TMI 1267 - CESTAT AHMEDABAD
Penalty u/s 114(i) and 114(AA) of CA - Smuggling - fraudulent export of red sander under the guise of sanitary ware - Appellant submits that in the main offence of fraudulent export of prohibited red sanders the appellant had no knowledge, his job was to only arrange the container - HELD THAT:- It is found that the appellant was absolutely unaware about the concealment of prohibited goods in the container for export. His job is to provide the empty container to the exporter. Therefore, as admitted by the Learned Commissioner (Appeals) he had no ulterior motive or knowledge for any act of commission or omission therefore, merely because he did not inform after knowing about the concealment penalty cannot be imposed, for the reason that he came to know about the illegal export of red sander before the custom has already intercepted the containers at the port of export and the containers were put on the check packages. In this fact there is no question or need to inform the authorities as neither he was aware of the offence nor he was involved therein.
From the finding the Learned Commissioner appeal has clearly held that the appellant had no knowledge about any of the act which make the goods liable to confiscation. Despite his clear finding he upheld the reduced penalty.
There are no reason or role of the appellant to attract penalties under Section 114 (i) and Section 114 (AA) - penalties set aside - appeal allowed.
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2023 (5) TMI 1266 - DELHI HIGH COURT
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2023 (5) TMI 1265 - PUNJAB AND HARYANA HIGH COURT
Grant of Interim Bail - appropriate forum - non-bailable offence - petitioners contends that the custody of petitioners No. 2 and 3 being illegal, they need not to keep in custody merely because the petitioners have, instead of approaching the trial Court, approached the High Court by way of present petition - HELD THAT:- Keeping in view the facts and circumstances of the present case, where on the bare reading of the FIR and as per the short reply, which has been filed by the respondents, the factual aspect is not disputed with reference to the allegations against the petitioners especially with regard to petitioners No. 2 and 3. The said allegations in the FIR do not make out an offence which would be non-bailable qua them.
Under those circumstances, firstly, the officer, who had taken these two petitioners in custody, could not have done so without making them aware of the fact that they could avail of the remedy of release on submission of bail bonds or surety. The same would be the position as regards the order of remand at the hands of the Duty Magistrate as also the Special Court. It appears that at no stage, the provisions of the Statute were actually gone into or seen. In a mechanical manner, initially the Arresting Officer and thereafter, the Judicial Officers proceeded to pass orders of arrest and remand. Continuance of a citizen in custody without there being a mandate of law i.e. illegal custody cannot be permitted.
These being prima-facie the principled questions, which need to be decided apart from the other issues, as has been raised in the present petition and by the State, as recorded in the order dated 06.05.2023 as also mentioned by the learned Additional Advocate General, Punjab today and recorded above, as an interim measure, therefore, this Court grants interim bail to petitioners No. 2 and 3. Mr. Mritunjay Kumar son of Sh. Satish Rai and Parmender Singh Rawat son of Sh. Rajendra Singh are ordered to be released on interim bail to the satisfaction of the Judicial Magistrate/Duty Magistrate, Ludhiana.
Hearing of the case is deferred to 22.05.2023.
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2023 (5) TMI 1264 - ITAT KOLKATA
Unexplained cash credit u/s 68 - Onus to prove - directors of the subscriber companies have not come personally in response to the summons issued by the AO - HELD THAT:- Assessee in this case, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company individually. However, we note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds.
AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies.
Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO.
Assessee has rightly placed reliance upon the decision of Paradise Inland Shipping Pvt. Ltd [2017 (11) TMI 1554 - BOMBAY HIGH COURT] wherein 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.
A perusal of the impugned order of the ld. CIT(A) shows that the ld. CIT(A) has not discussed anything about the material facts of the case. He has not pointed out any defect and discrepancy in the evidences and details furnished by the assessee but simply upheld the order of the Assessing Officer in mechanical manner. The order of the CIT(A) is a nonspeaking order. The same is not sustainable as per law. Decided in favour of assessee.
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2023 (5) TMI 1263 - DELHI HIGH COURT
Seeking grant of Regular Bail - though initially bail was sought on the merits but however in the interregnum period, the health condition of the petitioner has deteriorated and the medical record which is being furnished shows that the petitioner is sick and infirm - HELD THAT:- It is pertinent to mention that the respondent department has also not brought on record any material on record to show that the petitioner is a flight risk. It is also a settled proposition that right to life is facet of Fundamental Right enshrined by the Constitution. Right to live with dignity includes right to live a healthy life. The person who is sick or infirm has a right to have adequate and effective treatment. Though jails and designated hospitals provide good basic treatment, but we cannot expect them to provide specialised treatment and monitoring as required in the present case. Last medical report of the petitioner dated 03.05.2023 shows that petitioner is in bad state and can be put into the category of sick/infirm.
In view of the medical record being furnished by the petitioner and the submissions made by learned ASG, the petitioner is admitted to bail on furnishing a personal bond in the sum of Rs.1,00,000/- with two sureties of the like amount to the satisfaction of the trial court, subject to the conditions imposed - application allowed.
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2023 (5) TMI 1262 - ITAT CHENNAI
Penalty u/s. 270A - Under-reporting of income in annual value of house property and interest income assessed under the head income from other source - AO noticed that the assessee has adopted annual value of house property less as compared to revised return file - added difference under the head income from house property - HELD THAT:- As during assessment proceedings when the AO noticed said lapse, the assessee admitted the mistake and offered sum under the head income from house property towards annual value of house property. The assessee had also accepted assessment of interest income under the head income from other source.
During penalty proceedings, the assessee explained before the AO that said mistake is on account of inadvertent error committed by an Accountant.
We find that, if you go through income on which the AO levied penalty u/s. 270A of the Act, on annual value of house property, the Accountant who filed return of income has committed inadvertent error and reported only ALV of Rs. 5,40,000/- instead of Rs. 8,40,000/- and in our considered view said mistake cannot be considered as under reporting of income for levying of penalty u/s. 270A of the Act.
In respect of assessment of interest income under the head business, instead of income from other source, the assessee fairly agreed that he was on a bonafide belief that said income is assessable under the head income from business.
When the assessee has explained that there is a bonafied mistake in offering interest income under the head income from business and also there is no difference in tax when it was offered under the head income from other source and income from business, in our considered view, there is no reason for the AO to levy penalty u/s. 270A of the Act, for under reporting of income. Thus, we delete penalty levied u/s. 270A towards under reporting of income in respect of annual value of house property and also assessment of interest income under the head income from other sources. Appeal filed by the assessee is allowed.
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2023 (5) TMI 1261 - DELHI HIGH COURT
Violation of the principle of natural justice - opportunity of personal hearing was not granted to the petitioners - proper service of the notice in compliance with Section 37C(1) of CE Act, or not - HELD THAT:- Section 37C(1) of the Act provides for the service of the decision, order, summons or notice by sending it through registered post with acknowledgment due to the person for whom it is intended. It provides that in case the same cannot be served through registered post, it should be served by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice is intended.
It is an admitted case that the notices in the present case could not be served on the petitioners since no one was found in the premises. Mr. Anuj Gupta, admittedly, had informed the authorities that the company has been taken over by a new management and the data can be procured from www.mca.gov.in.
This Court is conscious of the fact that the impugned orders are appealable orders. The impugned orders can be challenged by filing an appeal in terms of Section 35B of the Act. However, since the impugned orders have been passed without complying with the principles of natural justice and that the petitioners have approached this Court immediately on becoming aware of the impugned order, this Court considers it apposite that one opportunity is granted to the petitioners to present their case by filing an appropriate reply before the Adjudicating Authority.
The matter is restored before the Adjudicating Authority - petition allowed.
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2023 (5) TMI 1260 - DELHI HIGH COURT
Seeking grant of Default Bail - criminal conspiracy thereby cheating and inducing a consortium of 17 banks led by Union Bank of India (UBI) to sanction huge loans - siphoning off and misappropriation of funds - default on repayment of the legitimate dues - HELD THAT:- The Constitution of India is a fountainhead of the law of the land and procedures and is a shining light to show and guide us in order to secure the ends of the justice. Part-III of the Constitution of India confers fundamental rights. One of the most important fundamental rights enshrined in the Constitution of India is that of personal liberty. The basic underlying idea of Part –III of the Constitution of India is to protect the people against the might of the State - Any law in this country has to be subservient to the Constitution of India and must fulfil the object and intendment of the same.
The provisions in the Cr. PC also in a way are meant to safeguard the rights of an individual. Thus, the strict adherence to the provisions of the Cr. P.C. in fact amounts to ensuring the fulfilment of the golden principles laid down in the Constitution of India. Section 57 of the Cr. P.C. provides that a person arrested cannot be detained for more than 24 hours and such person has to be produced within such time before the Court of law - It is a settled proposition that in the first 15 days, the Court can remand such accused to judicial or police custody. Section 167 (2) (a) (i) of the Cr. P.C. provides that such a custody cannot exceed 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term not less than ten years. Section 167 (2) (a) (ii) states that the detention cannot exceed 60 days where the investigation relates to any other offence.
The Court is very clear in its mind that merely because in the charge sheet if the investigating agency has stated they want to conduct further investigation, the charge sheet cannot be termed as a preliminary charge sheet. The police has a right to conduct further investigation. However, at the same time, the investigating agency under the garb of further investigation cannot be allowed to file the police report without completion of investigation, only to defeat the right of statutory bail. The basic concept is that to fulfil the provision of Section 167, the charge sheet has to be filed upon completion of investigation - The material collected by the investigating agency so far, to the mind of this Court falls too short. Rather, if, this report is considered to be a complete investigation qua the accused persons, the investigating agency will suffer a lot. The Court as a guardian of the administration of justice has to ensure that there is strict compliance of the provisions. The investigating agency in its anxiety of keeping the accused persons in custody may take a plea that investigation is complete. However, the best judge in this regard should be the trial Court.
This Court considers that the learned Trial has rightly made an observation that now the time has come when the legislature will have to make certain provisions where the period of investigation for such serious offences have to be extended subject to certain limitations and restrictions. It has repeatedly been held that merely because cognizance has been taken, the right to statutory bail cannot be extended or defeated - This Court is of the considered opinion that the charge sheet filed by the CBI in the present case is an incomplete/piecemeal charge sheet and terming the same as a final report under section 173 (2) Cr.P.C. merely to ruse the statutory and fundamental right of default bail to the accused shall negate the provision under Section 167 Cr. PC and will also be against the mandate of Article 21 of the Constitution of India.
There is no illegality or perversity in the order of the learned Sessions Judge - The Court is the guardian of the rights bestowed upon the accused persons. Strict compliance of the procedure is necessary to protect the fundamental rights of an individual. Merely, filing of the chargesheet, whether incomplete or piecemeal cannot defeat the basic purpose of Section 167 (2) Cr. P.C. - Section 167 (2) Cr.P.C. must be interpretated bearing in mind the three-fold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and establishing a rationalized procedure that protects the interests of the indigent strata of society. These objects essentially serve as components of the overarching fundamental right guaranteed under Article 21 of the Constitution of India.
The present petition is dismissed.
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2023 (5) TMI 1259 - ITAT MUMBAI
Revised claim made in the return filed u/s 153A - Carry forward of Short Term Capital Loss - long-term capital loss made in the return u/s 153A which has been further revised and claimed as short-term capital loss - HELD THAT:- Since, in the case of the assessee, the original return u/s 139(1) for the year under consideration was filed on 17.10.2016, however, due to search action at the premises of the assessee on 30.11.2017, the assessment for the year under consideration got abated and consequently notice u/s 153A was issued.
In the return of income filed u/s 153A, the assessee claimed long term capital loss on the sale of the shares, subsequently, the said return was revised and the assessee claimed that since shares held only for the period of 35 months and therefore, loss arising from the same of those shares was in the nature of the short-term capital loss.
In view of the decision of the Hon’ble Supreme Court in the case of JSW Still Ltd. [2020 (2) TMI 307 - BOMBAY HIGH COURT] the return claiming the loss has been filed in terms of section 139(1) of the Act and therefore, the assessee is eligible for carry forward of the loss as per the provisions of law. In the facts of the case, the Assessing Officer need to verify and compute the quantum of loss, therefore , in the interest of substantial justice, we feel it appropriate to restore this issue back to the file of the AO for examining the computation of claim of loss sought to be carried forward by the assessee - Ground of appeal of the assessee allowed for statistical purpose.
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2023 (5) TMI 1258 - ITAT MUMBAI
Rectification of mistake u/s 154 - Jurisdictional High Court case has not been considered - claim of ‘long term capital loss’/’short term capital loss’ on the sale of the shares rejected as same was not filed in return of income as per sec 139(1) - assessee revised the return of income filed u/s 153A wherein the assessee revised the long term capital loss and offered the same as short term capital loss - Tribunal has not allowed either the claim of the ‘long term capital loss’ filed in the original return of income u/s 153A or claim of ‘short term capital loss’ filed in the revised return of income u/s 153A - assessee submitted that this loss from the sale of the shares was revised as shares were held only for a period of 35 ( thirty five) months and therefore eligible for short term capital loss only.
HELD THAT:- As decided in the case of JSW Steel Ltd. [2020 (2) TMI 307 - BOMBAY HIGH COURT] wherein it is held that in case of the abated assessment new/fresh claim made in the return of income filed u/s 153A of the Act is eligible for deduction.
Since, in the case of the assessee the decision of the Jurisdictional High Court has not been considered which is a mistake of the law apparent from record as held in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] that non-consideration of decision of the Jurisdictional High Court or Supreme Court is a mistake apparent from record and which can be rectified u/s 254(1) of the Act. Miscellaneous Application of the assessee is allowed.
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2023 (5) TMI 1257 - ALLAHABAD HIGH COURT
Validity of reassessment proceedings - Submission is, the original assessment order came to be passed upon limited scrutiny. That exercise was directed mainly on the issuance of shares by the present petitioner - HELD THAT:- Merely because an audit objection may have been received as to the manner in which the assessment order came to be written may not be enough to reach conclusion of escapement in assessment. Thus, it has been submitted, reassessment proceedings in the present case has been initiated on a simple change of opinion, over the same material.
Matter requires consideration. As revenue prays and is granted four weeks' time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit.
List thereafter showing the name of Sri Krishna Agarwal as counsel for the revenue - In the meanwhile, reassessment proceedings for the Assessment Year 2016-2017 shall remain stayed.
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2023 (5) TMI 1256 - ITAT CHENNAI
Disallowance u/s.40A(3) - amount being paid in excess of Rs.20,000/- in a day to procurement of sand - HELD THAT:- Going by nature of business and practicability of the line of trade, we have to consider that though ultimate bill of sand procured subsequently given by Mr. M.Palanisamy, the fact is to be considered that sand is transported by trucks past midnight on account of prohibition to run on the day.
Actually, there is prohibition to run heavy trucks i.e. from 6.00 am to 6.00 pm in metros and big cities of India. The sand loads carried by different truck drivers are delivered at different locations of projects on the same day past mid-night. Although, cost of each load delivered in one single site may not exceed Rs.20,000/-, but on the same day different drivers have delivered different loads at different locations as is noted from ledger account submitted by the assessee, different drivers have delivered different loads at different locations of assessee’s construction sites and cumulatively, on a single day exceeds Rs.20,000/-.
Considering that since major portion of sand will consist of lorry freight, drivers who bring delivery of sand would demand cash payment in night in order to make wage payments. Hence although, provisions of section 40A(3) applies to present case, but neither the Assessing Officer nor the CIT(A) has gone into factum of delivery of sand load of trucks, whether truck drivers are agents of assessees or agent of sand supplier.
No clarity is coming out from the orders of lower authorities on this issue. Hence, another angle is that in case, entire amount of Rs.2.59 crores is added to the returned income of the assessee, profit margin of the assessee will be more than 50%, which is not at all possible in the given scenario and nature of business of the assessee. Therefore we estimate fair amount of disallowance and thus, we estimate disallowance at 25% of sand supplied by the assessee - Appeal of the Revenue is partly allowed.
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2023 (5) TMI 1255 - ALLAHABAD HIGH COURT
Oppression and mismanagement - Fraud and illegal financial activities committed by them while managing the company - criminal breach of trust and forgery
Contention is that even if the case of the prosecution is taken on its face, as is emerging from the first information reports and the grounds on which the charge sheet has been filed, no cognizable offence is emerging and therefore the trial court has committed manifest illegality in taking cognizance of the offences and in issuing process against the applicants.
HELD THAT:- There is no bar in lodging an FIR or in conducting an investigation or even in the trial or conviction of an offender under two different enactments, but the bar is only with regard to the punishment of the offender twice for the same offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted under either or both enactments but shall not be liable to be punished twice for the same offence.
The word civil court appearing herein above could not be read as criminal court. If the intention of the Legislature was to exclude the provisions of Indian Penal Code, with regard to the offences investigated under Companies Act, then nothing had prevented the Legislature from making such a provision. Even otherwise, it is a well established principle of law that the exclusion of the jurisdiction of the Court has to be specific and cannot be inferred, and the provisions excluding the jurisdiction have to be construed strictly. Thus, in the considered opinion of this Court the word "Civil Court", emerging in this section cannot be read as "Criminal Court".
Prima facie, there are specific allegations made by opposite party no. 2 in the FIR's lodged by him and the Investigating Officer having conducted investigation by collecting the material and recording the statements of the witnesses under Section 161 of the Cr.P.C. and considering the same, filed the charge sheet - The Court has to consider whether from allegations contains in FIR and material collected during the course of investigation prima facie any offence is disclosed. Correctness or otherwise of the said allegations has to be be decided only during trial. At the initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of the accused. Criminal complaints could not be quashed only on the ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out , Criminal proceeding shall not be interdicted.
Thus, no illegality appears to have been committed by the investigating officer in submitting the charge sheet or by the trial court in taking cognizance and in issuing process. Resultantly all the petitions filed by the applicants placed above are not having force and for the reasons mentioned herein before, all these petitions are dismissed.
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2023 (5) TMI 1254 - ITAT HYDERABAD
Levy of penalty u/s 271D - assessee has violated the provisions of section 269SS by accepting cash of Rs. 40.00 lakhs being his share for sale of the immovable property - Whether no satisfaction recorded by AO in the original assessment order? - HELD THAT:- Since admittedly there is no recording of satisfaction by the Assessing Officer in the body of the assessment order for initiating penalty proceedings u/s 271D of the I.T.Act, therefore, respectfully following the decision of Srinivas Reddy Reddeppagari [2022 (12) TMI 1446 - TELANGANA HIGH COURT] the penalty levied by the AO and sustained by the CIT (A) is liable to be quashed. We hold accordingly and direct the AO to cancel the penalty levied u/s 271D - Decided in favour of assessee.
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2023 (5) TMI 1253 - SUPREME COURT
Rejection of Tender - undertaking fresh tender process after disqualification of TATA Motors from the Tender - carrying on further exercise to ascertain whether EVEY also stood disqualified - HELD THAT:- This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution.
It is not in dispute that the first and the foremost requirement of the Tender was the prescribed operating range of the single decker buses which would operate for around and average of 200 Kms in a single charge in “actual conditions” with 80% SoC without any interruption. Then materials on record would indicate that the TATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the “standard test conditions” which was not in accordance with the Tender conditions. The High Court has rightly observed in its impugned judgment that the bid of the TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the Tender - the restriction on revision of documents under Clause 16 of Schedule I, which states, “No addition/correction, submission of documents will be allowed after opening of technical bid,” is only limited to the documents necessary to be included in the technical bid and would not be applicable to any such document which does not form a part of the technical bid.
The High Court should have been a bit slow and circumspect in reversing the action of BEST permitting EVEY to submit a revised Annexure Y. The BEST committed no error or cannot be held guilty of favoritism, etc. in allowing EVEY to submit a revised Annexure Y as the earlier one was incorrect on account of a clerical error. This exercise itself was not sufficient to declare the entire bid offered by EVEY as unlawful or illegal.
Thus, that part of the judgment and order passed by the High Court by which the decision of BEST to accept the tender of EVEY was set aside, is set aside - it was left to the discretion of BEST to undertake a fresh tender process - appeal dismissed.
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2023 (5) TMI 1252 - SUPREME COURT
Several allegations of sexual harassment against the Appellant - Breach of the principles of natural justice - ample opportunities to the Appellant to cross-examine the complainants and the witnesses was provided - appellant deliberately elected not to appear before the court - incidents in question relate to the period when the Vishaka Guidelines were in place and it had been clarified in Medha Kotwal Lele [2012 (10) TMI 1269 - SUPREME COURT] that the Complaints Committee will be deemed to be an inquiry authority for the purposes of the CCS Rules - HELD THAT:-It may be clarified at the outset that to satisfy itself that no injustice has been meted out to the Appellant, the High Court was required to examine the decision-making process and not just the final outcome. In other words, in exercise of powers of judicial review, the High Court does not sit as an Appellate Authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at.
Rule 14 prescribes the procedure required to be followed for conducting an inquiry by a Public Authority which entails issuance of a charge sheet, furnishing details of the Articles of Charge, enclosing statements of imputations in respect of each Article of charge, forwarding of a list of witnesses and the documents sought to be relied upon by the Management/employer. The said procedure may not have been strictly followed by the Committee in the present case, but it is not in dispute that all the complaints received from time to time and the depositions of the complainants were disclosed to the Appellant - The charges levelled by all the complainants were of sexual harassment by the Appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non-framing of the Articles of Charge by the Committee cannot be treated as fatal. Nor can the Appellant be heard to state that he was completely in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately. So far, so good.
The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the Appellant to a fair hearing. The due process, an important facet of the principles of natural justice was seriously compromised due to the manner in which the Committee went about the task of conducting the inquiry proceedings - This Court has repeatedly observed that even when the Rules are silent, principles of natural justice must be read into them. In its keen anxiety of being fair to the victims/complainants and wrap up the complaints expeditiously, the Committee has ended up being grossly unfair to the Appellant. It has completely overlooked the cardinal principle that justice must not only be done, but should manifestly be seen to be done. The principles of audi alteram partem could not have been thrown to the winds in this cavalier manner.
In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the Appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on. Records also reveal that the Appellant had furnished a detailed reply in defence.
There is no doubt that matters of this nature are sensitive and have to be handled with care. The Respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the Appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference.
This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the "as far as practicable" norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the Appellant, duly endorsed by the Appellate Authority cannot be sustained - matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009.
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2023 (5) TMI 1251 - SUPREME COURT
Recovery of unpaid Electricity dues from subsequent owner - Whether the arrears of unpaid electricity dues outstanding from the erstwhile owner can be claimed from the subsequent owner, who has acquired the property in proceedings initiated to enforce mortgages or to pay off the dues of creditors?
HELD THAT:- The conclusions are summarised below:
a. The duty to supply electricity Under Section 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity;
b. The duty to supply electricity Under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities;
c. For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the premises are different, it will be considered as a fresh connection and not a reconnection;
d. A condition of supply enacted Under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character;
e. The scope of the regulatory powers of the State Commission Under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners;
f. The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act;
g. The Rule making power contained Under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge;
h. The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery Under Section 56 of the 2003 Act;
i. The implication of the expression "as is where is" basis is that every intending bidder is put on notice that the seller does not undertake responsibility in respect of the property offered for sale with regard to any liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities; and
j. In the exercise of the jurisdiction Under Article 142 of the Constitution, the Electric Utilities have been directed in the facts of cases before us to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers.
Application disposed off.
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2023 (5) TMI 1250 - SC ORDER
Classification of goods - toffee - to be covered under Entry No. 137 Schedule II Part A of the U.P. Value Added Tax Act, 2008 or not - it was held by High Court that 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.
HELD THAT:- There are no reason to interfere with the impugned order - SLP dismissed.
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