|
Advanced Search Options
Case Laws
Showing 141 to 160 of 324 Records
-
2025 (3) TMI 184
Interpretation of statute - Section 11 of the Arbitration and Conciliation Act, 1996 - Whether disputes between partners of a limited liability partnership (LLP) and the LLP can at all be covered by the arbitration agreement contained in a limited liability partnership agreement (LLP Agreement) to which the LLP is not a signatory? - HELD THAT:- Under Item 1 of the First Schedule the mutual rights and duties of the LLP and its partners, subject to the LLP Agreement, is governed by the provisions of the First Schedule. Item 14 of the First Schedule provides that all disputes among partners arising out of the LLP Agreement that cannot be resolved in terms of the LLP Agreement, shall be referred to arbitration under the Arbitration Act. This is another statutory indication that the subject matter of the LLP Agreement includes duties owed by partners to the LLP and also duties owed to the partners by the LLP. This would necessarily render the LLP a necessary party to the arbitration proceedings relating to the LLP’s operations and governance, despite the LLP not being a signatory to the LLP Agreement. Therefore, even if there had been no arbitration clause at all in the LLP Agreement, the First Schedule would lead to an arbitration agreement being in existence in the eyes of law, for disputes among the partners.
The dispute at hand relates to the expulsion of a partner from the LLP. Whether the Managing Partner alone was responsible for it and other partners acquiesced in or approved of that decision is a subject matter of merits of the dispute. Whether the expelled partner’s conduct warranted expulsion, is a question that would necessarily require examination of the injury, if any, occasioned to the LLP’s interests by such partner’s conduct for the drastic step of expulsion to be taken. Therefore, it would be simply impossible for this Court to reject this Application under Section 11.
The upshot of this contention is that the LLP is not a necessary party to the dispute. Even a plain reading of the invocation notice addressed to Kothari would show that it was issued to him in his capacity as the Managing Partner. Therefore, to read it as a personal dispute of Radia with Kothari in his individual capacity is a misconceived contention. This argument has to be stated to be rejected. The dispute inter alia relates to expulsion of Radia. The expulsion is from the LLP. The cause for expulsion would necessarily have to relate to the injury allegedly occasioned to the LLP and to its partners, by the alleged conduct of Radia that led to the expulsion.
Conclusion - The objections raised by the Respondents to allowing this Section 11 Application are totally devoid of merit. Despite the existence of an arbitration clause in the LLP Agreement and in Item 14 of the First Schedule, the contention that the LLP itself is extraneous to the very LLP Agreement governing the LLP, in my opinion, is untenable and frivolous. Such objections have been raised evidently to delay and frustrate the commencement of arbitration proceedings.
Applocation disposed off.
-
2025 (3) TMI 183
Challenge to impugned order, rejecting the petition filed u/s 210 Cr.PC. - proceedings under Section 138 of the N.I. Act should be stayed or quashed - HELD THAT:- From the record it is seen that a petition for quashing was also filed by the petitioners praying for quashing of the CID (Assam) P.S. Case No. 03/2017 and accordingly the further proceeding was also stayed by this Court vide order dated 14.11.2018 and which was registered as Criminal Petition No. 828/2017 was subsequently allowed by quashing the CID Case No. 03/2017. During pendency of the CID case, the complaint case u/s 138 of the N.I. Act was filed alleging the dishonour of cheque amounting to Rs. 81 lacs. But, from the perusal of the records and the annexures filed along with the petition, it is seen that the subject matter of both the cases cannot be considered as same or similar one to pass any order to stay the proceedings by calling any police report in connection with CID P.S. Case No. 03/2017. In CID P.S. Case No. 03/2017 the allegation of misappropriation of money was amounting to Rs. 1,36,97,352/- whereas the Criminal Case No. 3204/2017 is only in connection with the dishonour of cheque amounting to Rs. 81 lacs which is alleged to have been issued by the present petitioners.
From the entire facts and circumstances of the case, it is seen that the subject matter of both the proceedings cannot be considered as same or similar to stay the proceedings of the criminal complaint case. More so, it is also seen that the CID (Assam) Case No. 03/2017 has already been quashed by this Court and hence the question of stay of the present proceeding also does not arise at this stage.
Further, the alternative prayer of the petitioners to convert the prayer of the present case for setting aside and quashing of the entire criminal proceeding also cannot be entertained at present for quashing of the entire case by invoking power u/s 482 Cr.PC.
Conclusion - The learned Trial Court below committed no irregularity or mistake by passing the order dated 12.10.2018 by rejecting the prayer of the petitioners filed u/s 210 Cr.PC and hence there is no reason for setting aside and quashing the said order by invoking the power u/s 482 Cr.PC and hence this Court is of the opinion that there is no need of any interference in the order passed by the learned JMFC dated 12.10.2018 in C.R. Case No. 3204 of 2017.
Petition dismissed.
-
2025 (3) TMI 182
Dishonour of Cheque - vicarious liability of directors - it is alleged that Trial Court has mechanically passed the summoning orders without appreciating that the petitioners were not involved in the day-to-day affairs of the accused company - violation of principles of natural justice - HELD THAT:- It is well settled that under Section 138/ 141 of NI Act, the complainant is to make the particular averment in the complaint, to the effect that the accused person was the director of the accused company at the relevant time and is responsible for its day-to-day affairs, and therefore is vicariously liable for the offence. Thereafter, the onus of proving that at the relevant time, the accused persons were not the directors of the accused company and were not responsible for its day-to-day affairs, lies upon the accused persons and the same is matter of trial.
It must be borne in mind that Section 141 of the NI Act is a penal provision that creates vicarious liability for the accused. The petitioners have been implicated on the premise that they were responsible for the day-to-day affairs of the company. It is also settled that every person, regardless of whether they are in charge of the company during each series of act necessary to constitute the offence under Section 138 read with Section 141 of the NI Act or not, could be proceeded against if they are in charge of the affairs of the company even during one of the omissions’ that is necessary to constitute an offence under Section 138 read with Section 141 of the NI Act.
The Court can exercise its jurisdiction only upon unimpeachable and uncontroverted evidence being placed on record, however, in the absence of such evidence, the fact whether the accused person is responsible for the affairs of the accused company becomes a factual dispute, which is to be seen during trial - In a situation where the accused moves the Court for quashing even before the trial has commenced, the Court’s approach should be careful not to prematurely extinguish the case by disregarding the legal presumption supporting the complaint.
The factual issues that serve as defences in the case are not appropriate for determination under the powers conferred by Section 482 of the CrPC at this stage. It is well-established that this Court should refrain from expressing any views on disputed questions of fact in proceedings under Section 482 of the CrPC, as doing so could pre-empt the findings of the trial court.
Conclusion - Considering the contradicting material on record, the documents adduced by the petitioners cannot be said to be of such sterling and unimpeachable quality that it merits the quashing of the summons and consequential proceedings thereof. It cannot be said that the petitioners are not responsible for the functioning of the accused company or that the complaint is bereft of the requisite ingredients so as to proceed against the petitioners.
This Court finds no reason to interfere with the impugned orders - petition dismissed.
-
2025 (3) TMI 181
Dishonour of Cheque - invocation of jurisdiction of this Court under Section 482 Cr.P.C - application for sending the alleged cheque to handwriting expert for determination of the age of the contents and the signature has been turned down - HELD THAT:- The petitioner has indeed not disputed his signature contained in the cheque. Therefore, the trial court has rightly rejected the prayer for sending the cheque and other exhibits to handwriting experts. The trial court has also taken into consideration the delayed motion of the petitioner to send the exhibits to the handwriting experts. Although the judgments in subject cited by both the parties at the Bar are conflicting views on the subject but the fact remains that under the statutory command every case under Section 138 of the N.I. Act needs to be concluded within a stipulated time framed as prescribed under Section 143 of the N.I. Act.
In the instant case, the complaint was filed on 24.02.2020 and about five years have gone by. However, the matter is still pending for conclusion of the trial. In that scenario, the trial court’s order rejecting the application of the petitioner appears to be unquestionable. At the same time, right of an accused to defend in the criminal case is indefeasible. In the case of present nature when presumption is operating against the petitioner, which is rebuttable in nature, the right of the petitioner-accused to lead evidence in his rebuttal is also inalienable right. Therefore, the petitioner being accused has right to adduce all evidence under his command to disprove the case of the complainant-opposite party.
The petitioner should get at least an opportunity to lead his evidence in rebuttal. Therefore, it is open for the petitioneraccused to obtain report from a private handwriting expert and place it on record, if so advised. It is also open for the petitioner to lead any other evidence to prove his case on his defence, but that should not be at the cost of delaying the proceeding inordinately.
Conclusion - The petitioner is allwoed an opportunity to present defense evidence, including expert reports, to rebut the complainant's case.
The CRLMC is disposed of.
-
2025 (3) TMI 180
Dishonour of cheque - insufficient funds - discharge of legal liability or not - plaintiff proved the transaction led to execution of Ext.A1, so as to get the suit amount, as claimed or not - trial court went wrong in holding that the plaintiff proved Ext.A1 and the defendant’s case is contrary, to be acted upon - HELD THAT:- On reappreciation of the available evidence, the case of the plaintiff as to borrowing of Rs.3,00,000/- during the month of January, 2005, by the defendant and consequential issuance of Ext.A1 cheque dated 31.05.2005, were proved by the evidence of PW1, since the substantive evidence given by PW1 in this regard was not shaken. The defendant, in fact, had inconsistent contentions. That is to say, before filing the written statement, when Exts.A6 and A8 notices were issued, the case of the defendant was that the plaintiff was attempting to misuse the blank signed papers and blank signed cheques of the defendant, stolen away by Sri.Vijayakumar. But, thereafter in the the written statement even the signature in the cheque was also denied.
It is the well settled law that, when a fact is disputed, the evidence to prove the same is substantive evidence, though corroborative evidence also can be adduced to support the substantive evidence. Indubitably, corroborative evidence will not stand unless there is no substantive evidence. In the instant case, the substantive evidence as that of the plaintiff in the matter of transaction, which led to execution of Ext.A1 cheque was not shaken during cross-examination. Therefore, presumptions under Section 118 (a) to (g) of the NI Act is to be adjudged in favour of the plaintiff. The inconsistent case put up by the defendant is not supported by even remote piece of evidence and therefore the said case not at all established, inturn the presumptions in favour of the plaintiff not rebutted. In such view of the matter, the trial court rightly granted decree. In fact, the said verdict does not require any interference.
In view of the above, remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence. Accordingly, the remand plea at the instance of the learned counsel for the defendant also is liable to fail.
Conclusion - The presumption under Section 118 of the NI Act in favor of the holder of a negotiable instrument and the necessity for defendants to provide credible evidence to rebut such presumptions.
The appeal stands dismissed and the verdict under challenge stands confirmed. Considering the nature of the case, there is no reason to disallow the cost of this proceedings to the plaintiff/respondent.
-
2025 (3) TMI 179
Maintainability of petition - availability of alternative remdy of appeal - jurisdiction of RERA - non-compliance with certain provisions of the Real Estate (Regulation and Development) Act, 2016 (RERA Act) - HELD THAT:- There is a bestowment of a statutory right in any aggrieved person to file a complaint with the authority or before the adjudicating officer, thus relating to any violations or contraventions qua any provisions of the Act or of the rules and regulations made thereunder, and, the said statutory endowment is stated therein to be ably raisable against any promoter, allottee or Real Estate Agent, as the case may be. Resultantly, therebys, the issue relating to the exercising of able jurisdiction, upon, the apposite complaint rather becomes more pointedly underpinned, on the supra provisions relating to the adjudicatory capacity of the RERA, than visa-vis respective omissions being made to either sub-Section 1 to Section 3 of RERA Act or to the second proviso to sub-Section 1 of Section 3 of RERA Act.
The vesting of jurisdictional competence, in the RERA authority, is pinpointedly grooved upon the bestowment of a remedy to the aggrieved, thus through the statutory mandate enclosed in Section 31 of RERA Act, than upon, the necessity of compliances being made by the promoter, vis-a-vis the mandate which occurs in sub-Section 1 of the Section 3 of RERA Act. Moreover therebys wants if any of compliances rather even by the competent authority, vis-à-vis, the mandate enclosed in the second proviso to sub-Section 1 of Section 3 of RERA Act, thus is not the apposite statutory precursor rather for vesting the competent adjudicatory jurisdiction in the RERA Authorities.
Since the gamut of the apposite jurisdictional provisions, relating to the conferment of competent adjudicatory jurisdiction, upon the RERA vis-a-vis the instant controversy, when but also naturally covers promoter(s), who irrefutably also is the present petitioner, as he has evidently in terms of the definition of ‘promoter’, offered through Annexure P-3 rather the subject project for sale to the prospective buyers. Resultantly, when on makings of plain and literal interpretation of the supra provisions, but manifests that therebys the competent adjudicatory jurisdiction vis-a-vis complaints, as received from any ill act of even a promoter, as the present petitioner, thus is, hence becomes conferred upon the RERA authorities.
Conclusion - i) The writ petition was not maintainable due to the availability of an alternative appellate remedy under the RERA Act. ii) The jurisdiction of the RERA Authority to adjudicate complaints, even in the absence of project registration under Section 3, confirmed. iii) The non-registration of the project did not invalidate the RERA Authority's jurisdiction or render its actions coram non judice.
Petition dismissed.
-
2025 (3) TMI 178
Maintainability of petition - availability of alternative remedy - transitional credit - whether in the teeth of Section 140 of the GST Act, was there any bar or prohibition for filing return in the GST portal of Telangana where the petitioner’s branch admittedly exists? - it was held by High Court that 'The very foundation of show cause notice itself is bad in law and the assumption of respondent No. 2 that return could not have been filed in the GST portal of Telangana is not flowing from Section 140 of the Act. Therefore, the impugned action founded upon such notion is bad in law and deserves interference.'
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court.
SLP dismissed.
-
2025 (3) TMI 177
Seeking to withdraw the writ petition - Challenge to demand raised in order passed u/s 73 of the WBGST/CGST Act, 2017 issued in Form GST DRC-07 - HELD THAT:- Without going into the issue as the whether the entire tax has been paid by the petitioner, the writ petition stands dismissed as withdrawn for the petitioner to take the benefit of waiver of interest and penalty in terms of Section 128(A) of the said Act.
The interim order passed by this Court on 15th July, 2024, accordingly stands vacated.
-
2025 (3) TMI 176
Vires of extension of time limits specified under the CGST Act - Chellenge to N/N. 9/2023-Central Tax dated 31st March, 2023, N/N. 56/2023 – Central Tax dated 28th December, 2023, N/N. 9/2023-State Tax dated 24th May, 2023 and N/N. 56/2023 dated 16th January, 2024 - HELD THAT:- In a similar matter, in the case of [2024 (7) TMI 1601 - BOMBAY HIGH COURT], the Nagpur Bench of this Court has directed the Respondents in the said matter not to take any coercive action against the Petitioner. Here also, since the issue is whether the Notifications are valid and whether the impugned order could have been passed (especially, if Notifications dated 28th December, 2023 and 16th January, 2024 are set aside), a strong prima facie case is made out for granting interim relief to the Petitioner.
Liberty granted to the parties to apply in the event the matter before the Hon’ble Supreme Court is disposed of one way or the other.
-
2025 (3) TMI 175
Vires of extension of time limits specified under the CGST Act - Chellenge to N/N. 9/2023-Central Tax dated 31st March, 2023, N/N. 56/2023 – Central Tax dated 28th December, 2023, N/N. 9/2023-State Tax dated 24th May, 2023 and N/N. 56/2023 dated 16th January, 2024 - HELD THAT:- In a similar matter, in the case of [2024 (7) TMI 1601 - BOMBAY HIGH COURT], the Nagpur Bench of this Court has directed the Respondents in the said matter not to take any coercive action against the Petitioner. Here also, since the issue is whether the Notifications are valid and whether the impugned order could have been passed (especially, if Notifications dated 28th December, 2023 and 16th January, 2024 are set aside), a strong prima facie case is made out for granting interim relief to the Petitioner.
Liberty granted to the parties to apply in the event the matter before the Hon’ble Supreme Court is disposed of one way or the other.
-
2025 (3) TMI 174
Vires of extension of time limits specified under the CGST Act - Chellenge to N/N. 9/2023-Central Tax dated 31st March, 2023, N/N. 56/2023 – Central Tax dated 28th December, 2023, N/N. 9/2023-State Tax dated 24th May, 2023 and N/N. 56/2023 dated 16th January, 2024 - HELD THAT:- In a similar matter, in the case of [2024 (7) TMI 1601 - BOMBAY HIGH COURT], the Nagpur Bench of this Court has directed the Respondents in the said matter not to take any coercive action against the Petitioner. Here also, since the issue is whether the Notifications are valid and whether the impugned order could have been passed (especially, if Notifications dated 28th December, 2023 and 16th January, 2024 are set aside), a strong prima facie case is made out for granting interim relief to the Petitioner.
Liberty granted to the parties to apply in the event the matter before the Hon’ble Supreme Court is disposed of one way or the other.
-
2025 (3) TMI 173
Challenge to Notifications extending time limits for issuing show cause notice u/s 73/74- Extension of time limits specified under the CGST Act by Notification issued under Section 168A of CGST Act - HELD THAT:- It is found that in a similar matter in the case of Aspect Integrated IT Pvt. Ltd Vs. Union of India [2024 (7) TMI 1601 - BOMBAY HIGH COURT], the Nagpur Bench of this Court has directed the Respondents in the said matter not to take any coercive action against the Petitioner. Here also, since the issue is whether the Notifications are valid and whether the impugned order could have been passed (especially, if Notifications dated 28th December, 2023 and 16th January, 2024 are set aside),we find that a strong prima facie case is made out for granting interim relief to the Petitioner.
Liberty granted to the parties to apply in the event the matter before the Hon’ble Supreme Court is disposed of one way or the other - This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court.
-
2025 (3) TMI 172
Condonation of delay in filing appeal - Wrongful availment of Input tax credit - HELD THAT:- It appears that the pre-deposit amount was already deposited by the petitioner before formal dismissal of the appeal. It is informed to the Court that in the month of December 2022, filing of appeal through electronic mode was not mandatory and the appeal could be filed manually also. There is nothing on record to show that any notification has been issued by which the manual filing of appeal was prohibited in the month of December, 2022. An appeal through electronic mode could not be filed until and unless the impugned order is uploaded on the GST portal. In the present matter, the impugned order was uploaded on 17.01.2023 and therefore, the petitioner could not file the appeal through electronic mode earlier, therefore, petitioner has not committed any error in depositing Rs.82,000/- in his GST Electronic Cash Ledger and submitting the appeal through speed post.
There was no failure on the part of petitioner in filing the appeal, within the prescribed period of limitation as well as depositing the mandatory amount in accordance with Section 107 (6b) of CGST Act, 2017. Merely, because the petitioner could not pay the mandatory amount through GST APL - 01 in the absence of uploading the Order in Original, petitioner cannot be held liable for transferring the amount in his GST Electronic Cash Ledger as no other option was available with the petitioner. In the facts and circumstances of the present case, the petitioner has sufficiently complied with the provisions of Section 107 and filed the appeal within condonable period and pre-deposited the amount through challan on 22.12.2022.
Conclusion - This Court is of the view that the appeal should not be dismissed merely due to a procedural delay, especially when the petitioner has made an effort to comply with the statutory requirements, including the predeposit of 10% of the tax liability and additional payments towards the disputed tax amount. The delay in preferring the appeal is hereby condoned.
Petition allowed.
-
2025 (3) TMI 171
Challenge to issuance of the SCN dated 29th November, 2024 under Section 73 of the WBGST/CGST Act, 2017 - HELD THAT:- Having considered the materials on record and noting that the challenge in the present writ petition is directed against the assumption of jurisdiction of the proper officer to issue a show-cause on 29th November, 2024, which the petitioner says to be barred by limitation, the writ petition which raises a jurisdictional issue in relation to exercise of authority to issue the aforesaid show-cause on 29th December, 2021 for the tax period April 2020 to March 2021, should be heard. At the same time, noting that the time to pass the order under Section 73(9) of the said Act would lapse on 28th February, 2025, the petitioners are directed to participate in the proceedings so that the proceeding can reach a logical conclusion.
Considering the pendency of the writ petition and the nature of challenge, if any final order is passed, the same shall not be enforced by the proper officer without obtaining leave of this Court - List this matter in the Monthly List of April, 2025 under the heading ‘Motion’.
-
2025 (3) TMI 170
Challenge to impugned order - "proceedings" Versus "inquiry" - Separate proceedings by the state and central authorities - On the audit concluded (by the state GST), petitioner accepted relevant paragraphs in the report, to meet the short payment of tax. - HELD THAT:- State revenue had probed by initiating audit. In G.K. Trading Company [2021 (1) TMI 130 - ALLAHABAD HIGH COURT] view taken includes audit to be a proceeding. Undisputed fact is, the show cause notice issued by Central revenue was after commencement of audit. A summons issued under section 70 means the process of collection of evidence or gathering of material, as by interpretation of word ‘investigation’ given by the Supreme Court in Liberty Oil Mills v. Union of India [1984 (5) TMI 236 - SUPREME COURT] with reference to investigation mentioned in provisions of Import and Export Control Act and Imports (Control) Order, 1955. There is also no dispute that subject matter of both proceeding are same.
Impugned order is quashed - petition allowed.
-
2025 (3) TMI 169
Reversal of ITC claim - time limitation - HELD THAT:- The issue involved in the present Writ Petition, has been squarely covered by the common order of this Court in SRI GANAPATHI PANDI INDUSTRIES, REP. BY ITS PROPRIETOR VERSUS THE ASSISTANT COMMISSIONER (STATE TAX) (FAC) TONDIARPET ASSESSMENT CIRCLE, CHENNAI [2024 (10) TMI 1631 - MADRAS HIGH COURT] wherein, this Court has categorically held 'this Court considering the fact that the issue involved in all these Writ Petitions is only with regard to the availment of ITC, which is barred by limitation in terms of Section 16 (4) of the CGST Act, and in the light of the subsequent developments took place, whereby, Section 16 of the CGST Act was amended and sub-section (5) was inserted to Section 16, which came into force with retrospective effect from 01.07.2017, the petitioners are entitled to avail ITC in respect of GSTR-3B filed in respect of FYs 2017-18, 2018-19, 2019-20 and 2020-21 as the case may be, on or before 30.11.2021, is inclined to quash the impugned orders.'
The impugned order dated 28.04.2024 is quashed insofar as it relates to the claim made by the petitioner for ITC which is barred by limitation in terms of Section 16 (4) of the CGST Act, 2017 but, within the period prescribed in terms of Section 16 (5) of the said Act - the respondent-Department is restrained from initiating any proceedings against the petitioners by virtue of the impugned order based on the issue of limitation.
Petition allowed.
-
2025 (3) TMI 168
Cancellation of GST registration of the petitioner, on the ground that the petitioner has not conducted any business in the declared place of business - HELD THAT:- In the case on hand, admittedly the petitioner has been paying the tax and filing the returns regularly. Since the petitioner's premises was closed at the time of inspection, the GST registration of the petitioner was cancelled, without ascertaining the fact whether the petitioner is carrying on the business or not. The reason given by the petitioner is that since the proprietor had gone to abroad during deepavali holidays, the business was closed for 10 days. The respondent without ascertaining the same has erred in coming to the conclusion that the petitioner was not carrying any business in the declared place. Therefore, this Court is of the view that the reason provided by the petitioner appears to be genuine.
The respondents shall take suitable steps by instructing GST Network, New Delhi to make suitable changes in the architecture of the GST Web portal to allow the petitioner to file the returns and to pay the tax/penalty/fine, within a period of one week from the date of receipt of a copy of this order - The petitioner is directed to file returns for the period till date, if not filed, together with tax dues along with interest thereon and the fee fixed for belated filing of returns within a period of 4 weeks from the date of restoration of GST Registration of the petitioner.
Conclusion - The Court's decision to set aside the cancellation order was based on the genuine reasons provided by the petitioner for the temporary closure of business.
Petition disposed off.
-
2025 (3) TMI 167
Maintainability of the present petition - petitioner has an alternative remedy under the Arbitration Act - Seeking reimbursement of extra GST amount paid @ 6% - HELD THAT:- Respondent No.4 which is a State GST Department, according to which also the rate of GST has been enhanced from 12% to 18% and same is liable to be paid by respondent No.2 which is a Government Entity.
The respondent No.2 is directed to pay the difference of GST amount to the petitioner @ 6% from 01.01.2022 to 24.01.2022 within a period of three months from the date of receipt of certified copy of this order, failing which the petitioner shall be entitled for interest @ 6% per annum from the date of entitlement.
Petition disposed off.
-
2025 (3) TMI 166
Benefit related to industrial promotion policies of the State Government - petitioner has submitted that although the reply has been filed by the respondents but there is no reference of the order passed by the appellate authority which is binding on the respondents also as they have also not challenged the aforesaid order - HELD THAT:- On perusal of the reply, it is found that the respondents have already complied with the order passed by the appellate authority vide their order dated 05/01/2022 accepting the petitioner's investment towards the construction, however, its benefit has not been given to the petitioner as per Clause 9(a) and 9(b) of their policy dated 22/06/2018 citing that the benefit of 2014 policy cannot be availed by the petitioner. However, it is also found that subsequent to the policy of 2014 after introduction of GST regime on 01/07/2017, the respondents/State has already come out with a fresh circular dated 22/06/2018 modifying the aforesaid policy on which, the petitioner is relying upon. Thus, apparently, the respondents have not extended the aforesaid benefit to the petitioner. In such circumstances, this Court is inclined to allow the present petition and it is directed to the respondents to extend the benefit of the order passed by the respondents on 05/01/2022 (Annx.R/3) to the petitioner within a period of 3 months from today.
Petition allowed.
-
2025 (3) TMI 165
Rejection of petitioner's claim for concessional rate of 12% on works contract services of original works executed pursuant to a contract entered with Tvl. Rail Vikas Nigam Limited - tax at 18% levied - whether the petitioner's contract with M/s. RVNL is entitled to the concession granted in terms of Sl. No. 3 (v) (a) of the notification, in other words liable to tax at 12%?
Relevance of definition under Indian Railway Act, 1989 - HELD THAT:- It may be relevant to note that “Railways”, has not been defined under the GST Act. Thus, the expression “railway” employed in the above notification, ought to be understood applying the common parlance test. It is also relevant to keep in view that a definition contained in a particular enactment cannot be incorporated into another enactment unless the enactments are pari materia. The definition in one statute may not afford a guide to construction of the same words or expressions in another statute unless the same are pari materia legislations or specifically provided or incorporated in the other statute - The impugned order insofar as it looks to the definition of Railways as defined under the Indian Railways Act, to construe the scope and width of the notification is wholly misdirected.
Applying the definition of Railways under Indian Railways Act, 1989 - HELD THAT:- On applying the definition of Railway as defined under IRA it appears that the contract between the petitioner and RVNL for doubling of track between Vanchi Maniyachchi to Nagercoil, construction of roadbed, minor bridges, platforms, buildings, water and effluent treatment facilities, wagon / coaching maintenance infrastructure, supply of ballast, installation of tracks and other electrical, signalling and telecommunication infrastructure in Madurai and Thiruvananthapuram Divisions of Southern Railway, would constitute 'Railway' even under the definition of Indian Railways Act, more particularly covered under clauses (b), (c) and (d) to Section 2(31) of the Indian Railways Act.
Expression “Railway” under the Notification – Not confined to Indian Railway - HELD THAT:- If the expression railway employed in the notification were to be construed to be confined to Indian Railway in its operation it may produce results which are incongruous inasmuch as the relevant entry under the notification covers original works pertaining not only to railways but also Mono Rail and Metro Rail which is undisputedly not part of the Indian Railway. The reference to Mono Rail and Metro Rail is only to show that the object does not appear to be to grant concession under the relevant entry to the subject notification of the qua an entity instead the object / intent appears to be to extend the benefit / concession to industry / utility mentioned therein viz., Railway, Metro Rail and Mono Rail.
Relevance of the expression “pertaining to” - HELD THAT:- The use of the expression “pertaining to” would show that the legislation intented to give an expansive meaning to the expression “Railway”. If we bear this in mind the contract in question for doubling of track between Vanchi Maniyachchi to Nagercoil, construction of roadbed, minor bridges, platforms, buildings, water and effluent treatment facilities, wagon / coaching maintenance infrastructure, supply of ballast, installation of tracks and other electrical, signalling and telecommunication infrastructure in Madurai and Thiruvananthapuram Divisions of Southern Railway, between the petitioner and RVNL, would constitute original work pertaining to railway for the purpose of the subject notification.
Exemption not to be curtailed by importing conditions - HELD THAT:- The definition of Railway under the Indian Railway Act, 1989, may not be relevant in construing the subject notification. In any view, even applying the definition of Railway as defined under the Indian Railway Act, 1989, to the contract between the petitioner and M/s. RVNL which is for doubling of track between Vanchi Maniyachchi to Nagercoil, construction of roadbed, minor bridges, platforms, buildings, water and effluent treatment facilities, wagon / coaching maintenance infrastructure, supply of ballast, installation of tracks and other electrical, signalling and telecommunication infrastructure in Madurai and Thiruvananthapuram Divisions of Southern Railway, it appears to me from the discussion supra that it would still constitute original work pertaining to Railway for the purpose of the subject notification and thus covered under Sl.No. 3 (v) (a) of the said notification.
Construction that leads to Consistency - HELD THAT:- It is trite law that consistency in law is as important as correctness, if not greater as held in Paper Products LTO vs. Commissioner of Central Excise [1999 (8) TMI 70 - SUPREME COURT] - Thus the impugned order being contrary to Appellate Advance Ruling and Advance Ruling Authorities referred above would lead to uncertainity and inconsistency which ought to be avoided.
Conclusion - The contract for doubling of track between Vanchi Maniyachchi to Nagercoil, construction of roadbed, minor bridges, platforms, buildings, water and effluent treatment facilities, wagon / coaching maintenance infrastructure, supply of ballast, installation of tracks and other electrical, signalling and telecommunication infrastructure in Madurai and Thiruvananthapuram Divisions of Southern Railway, between the petitioner and RVNL would be covered by Notification 11 of 2017 CGST (RATE) dated 28.06.2017 as amended vide Notification No. 20/2017 dated 22.08.2017, Notification No. 8 of 2017 Integrated Tax (Rate) dated 28.06.2017 and G.O. Ms. No. 94 dated 22.8.2017 CT & RE and liable to tax at 12%.
The impugned orders are set aside - Petition allowed.
............
|
9911796707
