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Showing 181 to 200 of 1409 Records
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2020 (12) TMI 1232
Seeking exclusion of period and extension of Corporate Insolvency Resolution Process (CIRP for short) period - Resolution Professional had fallen sick around 01st September, 2020, and subsequently tested positive for COVID-19 on 18th September, 2020, which hampered progress in the conduct of CIRP - HELD THAT:- The Appellant was, in the wake of outbreak of COVID-19 declared as Pandemic culminating in imposition of Nationwide lockdown w.e.f 25th March, 2020, prevented from undertaking further steps for bringing the CIRP to logical conclusion. There is ample proof on record to hold that the Appellant was tested positive for COVID-19 after falling sick and he became inactive due to medical reason being on self-isolation and quarantined. Thus, despite his earnest effort he was unable to convene meeting of the COC. Even an attempt made at convening such meeting through digital platform proved futile due to falling ill. In the given circumstances, the Adjudicating Authority should have taken these factors into consideration which warranted mitigating the hardship and not compounding the same. The COC, which was in existence, had not been dissolved and once the Nationwide lockdown was imposed as a sequel to outbreak of COVID-19 declared as Pandemic resulting in all activities related to trade and commerce business coming to a grinding halt, COC as an institution cannot be said to have got dissolved.
The COC would not be deemed to have been dissolved, at least for the purposes of passing of Resolution seeking exclusion of Lockdown period and extension of CIRP period beyond the prescribed time of 180 days. There being cogent reasons for acceding to the prayer made in this appeal, we find that the impugned order cannot be sustained.
The exclusion of 203 days w.e.f. 15th March, 2020 till 4th October, 2020 (inclusive of the period for which the petitioner was immobilized as a victim of COVID-19) from CIRP period of 180 days is allowed - Appeal is accordingly allowed with direction to the Appellant to carry forward the CIRP with expedition.
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2020 (12) TMI 1231
Maintainability of petiotion - entitled to file appeal but not done so - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2020 (12) TMI 1230
Adjudication not finalised even after lapse of more than 10 years - Denial of CENVAT Credit - recovery of rebate claim - petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers - HELD THAT:- The subject matter in the present petitions is squarely covered by the ratio of pronouncement in the case of M/S GPI TEXTILES LIMITED VERSUS UNION OF INDIA AND OTHERS [2018 (9) TMI 25 - PUNJAB & HARYANA HIGH COURT] where it was held that the notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed.
Filing of the appeal before the Jammu & Kashmir High Court against order dated 28.08.2018 passed by CESTAT, Chandigarh pertaining to supplier of the petitioners (purchaser) - HELD THAT:- It would have no bearing upon the findings recorded above, keeping in view the peculiar facts & circumstances of the case and law laid down referred to above. Moreover, the Jammu & Kashmir High Court has not granted any interim order in favour of the respondent(s)/ Revenue on the appeal filed after 1 ½ year of passing of order of the Tribunal in case of supplier (seller) of goods to the petitioner (purchasers).
The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed - petition allowed.
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2020 (12) TMI 1229
Application for conversion of shipping bills - time limitation - claim for conversion of drawback to that of entitlement to benefits under the ‘duty-free import authorisation (DFIA)’ scheme of the Foreign Trade Policy - rejection solely on the ground that conversion had not been sought within the period prescribed in circular no. 36/2010 dated 23rd September 2010 of Central Board of Excise & Customs - HELD THAT:- The imperative of implementing schemes of export promotion under the Foreign Trade Policy even at the cost of foregoing revenue mandates facilitation that may seemingly be in conflict with the remit of the taxing authority; a post-exportation conferment of that escapement is even less likely to facilitated and circular no.36/2010- Cus dated 23rd September 2010 is but a pathway to the larger objectives of governance. It is moot, therefore, if the intent of the circular is to be perceived in its letter, as held by the ‘proper officer’, rather than in its spirit as claimed by the appellant.
Circular no. 36/2010-Cus dated 23rd September 2010 was preceded by circular no. 4/2004-Cus dated 16th January 2004 of Central Board of Excise & Customs which it also superseded. The impetus for the original circular was the disadvantage at which an exporter was placed on disallowance of eligibility for a particular scheme by the Director General of Foreign Trade and consequent inability to seek the privileges of another scheme owing to the absence of any authority that customs formations could take recourse to. Several years later, the facility of migration, contingent only upon such rejection, was, upon representation by the exporting community, considered to be ripe for availment as a commercial option to be exercised by the exporter. The timeframe of one month, in the first of the circulars, kicking in from rejection by the Directorate General of Foreign Trade, could no longer be the benchmark and a longer span of three months from the date of ‘let export order (LEO)’ was considered to suffice for the exercise of such option. Hence, it is apparent that the more recent circular was intended to liberalise the migration from one scheme of the Foreign Trade Policy to another.
The bar of limitation could be invoked only in the absence of any mitigating circumstances offered up in response to clarification sought by the ‘proper officer’ from the appellant for an appropriate decision - It is evident that the impugned order is bereft of a comprehensive appreciation of the schema of amendment to, and conversion of, shipping bills. The cryptic, and even peremptory, disposal of the request, without conforming to the reasonableness and judiciousness, mandated by section 149 of Customs Act, 1962 and disregarding the spirit in which the guidance was offered in the circular of Central Board of Excise & Customs, is not an outcome of responsible discharge of authority devolving upon the Commissioner of Customs. The applicant was not informed of the deficiencies, if any, that precluded them from being eligible for conversion; nor were they afforded an opportunity to demonstrate that their eligibility for coverage under the intended scheme was unimpeachable.
The impugned order is set aside for the application to be returned to the Commissioner of Customs for fresh determination of eligibility for conversion - Appeal allowed by way of remand.
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2020 (12) TMI 1228
Exclusion of period between 05.05.2020 and 31.10.2020 from CIRP - section 12(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CIRP in relation to the Corporate Debtor was initiated only on 05.05.2020 i.e. during the period of lockdown and as such the Applicant has sought to exclude the period from 05.05.2020 till 31.10.2020. The Applicant placed on record the G.O. Ms. No. 482, Revenue and Disaster Management (DM-IV) Department, Government of Tamil Nadu dated 12.09.2020 and G.O. Ms. No. 447, Revenue and Disaster Management (DM-IV) Department, Government of Tamil Nadu dated 30.08.2020 in order to substantiate the during such time, where the exclusion is sought for, the lockdown was in existence in the Government of Tamil Nadu.
As to the facts of the present case, in view of Regulation 40C of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 the period from 05.05.2020 till 31.10.2020 is excluded from the period of CIRP in terms of Section 12(2) of IBC, 2016 - Application allowed.
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2020 (12) TMI 1227
Scope of Arbitration - scope of landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882 - Doctrine of election to select arbitration as a dispute resolution mechanism by mutual agreement.
As per SANJIV KHANNA, J.
HELD THAT:- Landlord-tenant disputes governed by the Transfer of Property Act are arbitrable as they are not actions in rem but pertain to subordinate rights in personam that arise from rights in rem. Such actions normally would not affect third-party rights or have erga omnes affect or require centralized adjudication. An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court. Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State. The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration. Transfer of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants - the landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.
Who decides non-arbitrability? - HELD THAT:- Scope of judicial review and jurisdiction of the court Under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted - The general Rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the arbitral tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of "second look" on aspects of non-arbitrability post the award in terms of Sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or Sub-clause (i) of Section 34(2)(b) of the Arbitration Act - Rarely as a demurrer the court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is nonexistent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably 'non-arbitrable' and to cut off the deadwood.
The expression 'existence of an arbitration agreement' in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the arbitral tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.
The issue of arbitrability to the Tribunal to decide and come to a conclusion on the same. Further, the parties are at liberty to challenge the award if they are not satisfied with the same in this regard.
As per N.V. Ramana, J.,
Section 8 of the Act mandates that a matter should not be referred to an arbitration by a court of law unless it finds that prima facie there is no valid arbitration agreement. The negative language used in the Section is required to be taken into consideration, while analyzing the Section. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above. Therefore, the Rule for the Court is 'when in doubt, do refer' - Courts, while analyzing a case Under Section 8, may choose to identify the issues which require adjudication pertaining to the validity of the arbitration agreement. If the Court cannot Rule on the invalidity of the arbitration agreement on a prima facie basis, then the Court should stop any further analysis and simply refer all the issues to arbitration to be settled.
The conclusions reached by the learned brother is agreed with.
Application disposed off.
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2020 (12) TMI 1226
Vivad se Vishwas Scheme 2020 - HELD THAT:- Since the assessee has opted for ‘Vivaad se Vishwas Scheme 2020’ and has filed an application as envisaged by the Ld.AR. We are of the view that, no purpose will be served in keeping the appeal pending. Accordingly, we dismiss the appeal of the assessee as withdrawn and the assessee is given liberty to move an application u/s 254(2) of the Act to recall the present order in accordance with the provisions of law.
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2020 (12) TMI 1225
Method of determination of provision of warranty, liability movement of warranty provisions - AR submitted that the provision of warranty is recognized by the assessee in compliance with the Accounting Standard-29 (AS-29) as prescribed by the ICAI at the time of sale and not at the time of settlement - HELD THAT:- As the assessee has been consistently following this method, which has been found by the Hon’ble ITAT, to be scientific and the conditions laid down by the Hon’ble Apex Court in in Rotork Controls India (P) Ltd [2009 (5) TMI 16 - SUPREME COURT] is also met, supra, which has also been upheld by the Hon’ble High Court, [2020 (8) TMI 768 - KARNATAKA HIGH COURT] Therefore, we do not find any merit in the Revenue’s appeal and hence, dismiss the same.
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2020 (12) TMI 1224
Exemption u/s 11 - rejecting the assessee’s application for registration u/s.12A - HELD THAT:- In our considered opinion the non-compliance by the assessee is fully attributable to the conduct of the consultant. In the substance interest of justice, we remit the issue to the file of learned CIT(A). Learned CIT(A) shall give the assessee one more opportunity for the compliance of his queries. Thereafter he shall decide as per law. The assessee is also directed to provide full cooperation.
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2020 (12) TMI 1223
Seeking dispensing with the physical presence and production of petitioner - seeking direction to question/interrogate the petitioner in connection with the aforesaid FIR through online mode/vide conferencing - HELD THAT:- Interrogation is an effective tool available with an Investigator. It is an indefeasible right of the police to interrogate an accused to unearth the truth especially when direct evidence is not available or the modus operandi of the commission of offence is such that there are certain hidden facts which are required to be brought to surface. No doubt, the Courts in the present times have been relying upon video conferencing for the conduct of proceedings of the Court but interrogation of an accused, though possible through video conference, will loose much of its effectiveness when the accused is sitting far far away from the investigator/interrogator. During the course of interrogation, an Investigator would put several questions one after another depending upon the answers given by the accused while watching his demeanour. Interrogation also involves reading the psyche of the accused so as to elicit truth which can effectively be possible by observing his immediate response and conduct to the queries put to him.
This Court is of the firm opinion that the police cannot be deprived of its right to interrogate an accused and that video conferencing may not be as effective as physical interrogation especially when the case happens to be such where the accused has played a role in the back stage. However, at the same time keeping in view the apprehension of the petitioner, who is involved in large number of cases, it certainly needs to be secured that no harm is caused to the accused and that he is safely brought from the jail where he is presently confined in Rajasthan to Chandigarh or to Haryana where he is involved in other cases.
The petitioner shall first be brought from Rajasthan to Chandigarh by the Chandigarh police after obtaining requisite production warrants as per provisions of law and shall be produced before the Illaqa Magistrate concerned for the purpose of seeking remand - Petition disposed off.
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2020 (12) TMI 1222
Implementation of plan of action with respect to the use of videography in the crime scene during the investigation - it is claimed that crime scene videography ought to be introduced at least at some places as per viability and priority determined by the COB - majority of the Compliance Affidavits and Action Taken Reports fail to disclose the exact position of CCTV cameras qua each Police Station - HELD THAT:- The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.
The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.
Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.
List on 27.01.2021.
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2020 (12) TMI 1221
Penalty u/s 271(1)(b) - No response on the show cause issued u/s 274 - HELD THAT:- Facts on record prove that the assessee has indeed replied on 19.11.2018 and explained that the notice dated 16.10.2018 has not been received by them and there was a noting of the Assessing Officer on the letter. Thus, the observation of the Assessing Officer that there was no compliance to the show cause was contrary to the findings on the record. Hence, the penalty levied is liable to be obliterated - Appeals of the assessee are allowed.
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2020 (12) TMI 1220
Maintainability of petition - time limitation for filing revision petition lapsed - Petitioner did not prefer any Revision Petition before the authority, but has instead filed this Writ Petition challenging the order passed by the Second Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Since the order fixing the compounding fee in respect of the Petitioner for the year 2015-2016 has attained finality, the consequential notice dated 03.03.2017 for recovery of the amount due cannot be interdicted.
Petition dismissed.
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2020 (12) TMI 1219
Fraudulent IPO proceedings - certain applicants of the IPO were funded by the entities connected with the Company itself and subsequently, the IPO proceeds were not utilized towards the objects of raising funds and instead were allegedly transferred to a few of the entities who had funded the applicants of the IPO - Underwriting Agreement to subscribe unsubscribed portion of the IPO - ex-parte ad interim order issued - Whether the Noticee nos. 4 to 11 are connected and whether the Company through its connected entities/Noticees has funded the subscription of its IPO? - HELD THAT:- A careful consideration of clauses of the Underwriting Agreement reveals that the obligation of the underwriter was limited/restricted to only those IPO applications that was to be procured by it only in case of default of payment by an applicant after allotment of shares or in case of withdrawal of such applications by applicants (to whom allocation of equity shares has been made) just prior to allotment of shares to those applicants - no other clause in the aforesaid agreement that can be shown to have imposed a contractual obligation on the underwriter to subscribe to the entire unsubscribed portion of the IPO so as to cross the minimum threshold of 90% subscriptions of total quantity of shares offered in the IPO. Thus, the said Underwriting Agreement which is being peddled by the Company as a strong defense shield to ward off the charges of funding of IPO subscription by the Company, is actually of no help to the Company given the facts and circumstances of the present case.
In absence of such a financial backing, the only consequence would have been the failure of the IPO thereby compelling the Company to refund all the application amounts so collected from the applicants. Therefore, the argument of the Company projecting its Underwriting Agreement as an answer to the allegations of funding subscription to its own IPO does not hold ground at all hence, is liable to be rejected as not maintainable on the face of the aforesaid factual evidence and observations made in preceding paragraphs.
Particularly the details of the financial transactions highlighted above, the evasive replies of the Company and its Directors and complete absence of any explanation from the other Noticees , we are persuaded to hold that the Company, its Directors and the rest of the Noticees have successfully implemented a fraudulent scheme to achieve sufficient number of applications by way of funding the applicants, with the sole motive to get the listing of its equity shares on SME segment of BSE. Thus, as far as the first issue is concerned, the same has to be answered affirmatively against the Noticees and in favour of the allegations levelled in the SCN.
Diversion of IPO proceeds in deviation from the Objects of the IPO - Whether the proceeds of IPO have been utilized by the Company in terms of the Objects stated in the Prospectus? - Considering the overall conduct of the Noticee no. 1, I find it beyond acceptance that the Company and its Directors (Noticee nos. 1 to 3) are not in a position to explain the details of transfer of INR 15.65 Crore, when it was disclosed to the investors in the IPO documents that the IPO proceeds would be utilized for the stated Objects of the Issue.
Consediring facts and the circumstances and the manner and timing of transfer of funds made immediately after the IPO, I am constrained to observe that the amount of INR 10.59 Crore which was immediately diverted from the IPO proceeds to various entities belonging to the funding group entities represent nothing but reimbursement of the funds that were provided by the funding group entities (Noticee nos. 4 to 11) so as to make the IPO of the Company successful by helping it cross the statutory ceiling of 90% of total subscription amounts.
Company, in connivance with the funding group Noticees at the first stage, financially supported the applications of the 161 IPO applicants who were allotted 13,24,000 shares. Subsequently, out of INR 15.97 Crore received under the IPO, the Company siphoned off INR 15.60 Crore (approx.) by transferring the same to various entities out of which, INR 10.59 Crore (approx.) was transferred to the funding group Noticees. By acting in tandem and in concert to fructify their scheme, all the Noticees in this proceedings have been able to make the IPO of HPC successful by way of funding the IPO applications to the extent of 29.03% of the total shares subscribed under the IPO in the absence of which, the IPO would have been hit by non-achievement of the mandatory 90% of shares offered in the IPO and resultantly the scrip of Company would have failed to reach the listing platform of the stock exchange.
The feeble attempt to produce certain self made documents to project utilization of IPO proceeds is nothing but an eyewash that the Company has attempted to make. Thus, the claimed grievance of not having provided adequate opportunities does not exist anymore in the present case as the Company and its Directors have provided whatever explanation and documentary proofs they intended to file out of their own volition, which have been duly considered by me and the findings on such explanations have already been recorded in this order. Under the circumstances, the unassailable fact remains that despite providing adequate opportunities, and in spite of furnishing various explanations and documents, the Noticees including the Company have not been able to produce any tangible material or evidence so as to justify the transfer of huge sums of IPO proceeds to different entities, in gross violation of the stated Objects of the IPO.
Transfer of funds immediately after the IPO coupled with the evasive and unsubstantiated explanations offered by the Company with respect to claimed utilization of IPO proceeds, further explain the reasons as to why the Company had not actually utilized the IPO proceeds towards the Objects of its IPO. In reality, the specious claims of utilization of the IPO proceeds remained far away from the actual utilization in terms of the stated Objects, resulting in the un-fulfillment of the promises made to the shareholders by way of the Prospectus.
Noticees in this case have crafted the scheme with intricacies and in such a manner that the degree of proof to expose their fraudulent acts would be of preponderance of probabilities which, as held by me earlier are clearly tilted against the Noticees.
In exercise of the powers conferred upon me under Section 19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11(4) and 11B thereof, pass the following directions:
i. Noticee nos. 2 and 3 (promoters of the Company) are directed to make a public offer through a merchant banker to acquire shares of the Company from public shareholders by paying them the value determined by the valuer in the manner prescribed in Regulation 23 of the SEBI (Delisting of Equity Shares) Regulations, 2009 and acquire the shares offered in response to the public offer, within three months from the date of this Order
ii. BSE to facilitate valuation of shares to be purchased as directed at (i) above, and compulsorily delist the Company, if the public shareholding reduces below the minimum level in view of aforesaid purchase.
iii. The Noticee no. 1 is hereby restrained from accessing the securities market by issuing prospectus, offer document or advertisement soliciting money from the public in any manner for a period of 8 years.
iv. Noticee no. 2 and 3 are hereby restrained from holding post of director, any managerial position or associating themselves in any capacity with any listed public company and with any public company which intends to raise money from the public, or with any intermediary registered with SEBI for a period of 3 years.
v. The Noticees, as mentioned below are hereby restrained and prohibited from buying, selling or otherwise dealing in the securities market, directly or indirectly in any manner whatsoever manner, for the period specified in their respective columns: Sr. No. Name of Entity Debarred vide interim order Period of debarment.
vi. Obligation of the debarred Noticees, in respect of settlement of securities, if any, purchased or sold in the cash segment of the recognized stock exchange(s), as existing on the date of this Order, can take place irrespective of the restraint/prohibition imposed by this Order in respect of pending transactions, if any. Further, all open positions, if any, of the aforesaid debarred Noticees in the F & O segment of the stock exchange, are permitted to be squared off, irrespective of the restraint/prohibition imposed by this Order.
vii. It is further clarified that during the period of the aforesaid restraint, the existing holding of securities, including the units of mutual funds shall remain under freeze.
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2020 (12) TMI 1218
Seeking grant of Anticipatory Bail - purchase of Cigarettes - Input Tax Credit (ITC) availed of paid tax at the time of purchasing of cigarettes and was utilizing it for the sale of cigarettes - HELD THAT:- The petitioner is directed to appear before the competent authority on 21.12.2020 at 10.00 a.m. or any other date or time as fixed by the competent authority.
List again on 27.01.2021.
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2020 (12) TMI 1217
Principles of natural justice - ex-parte order - HELD THAT:- Issue notice by speed post as well as by electronic mode, returnable on 06.01.2021.
No ex-parte orders can be passed at this stage considering that the last date for availing to the benefit under the Companies Fresh Start Scheme 2020 (CFSS-2020) is today and there is no possibility of the petitioners' DIN or DSC being activated immediately.
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2020 (12) TMI 1216
Vires of The Places of Worship (Special Provisions) Act, 1991 - Petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as "Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came-thereafter the religion changed," imputing that 'the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.' - It is alleged that the Petitioner had deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community, revered even by Hindus, and thereby hurt and incited religious hatred towards Muslims.
Whether the FIR should be quashed? - HELD THAT:- The debate-show hosted by the Petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the Petitioner; thus, the consequence of the words of the Petitioner ensued in different places, including the places of registration of the impugned FIRs - Further, Clause (1) of Section 156 of the Code of Criminal Procedure provides that any officer in-charge of a police station may investigate any cognizable case which a court having jurisdiction over the local limits of such station would have the power to inquire into or try. Thus, a conjoint reading of Sections 179 and 156(1) of the Code of Criminal Procedure make it clear that the impugned FIRs do not suffer from this jurisdictional defect.
Defence of causing Slight Harm - HELD THAT:- Whether an act, which amounts to an offence, is trivial would undoubtedly depend upon the evidence collated in relation to the injury or harm suffered, the knowledge or intention with which the offending act was done, and other related circumstances. These aspects would be examined and considered at the appropriate stage by the police during investigation, after investigation by the competent authority while granting or rejecting sanction or by the Court, if charge-sheet is filed - The 'content' by itself without ascertaining facts and evidence does not warrant acceptance of this plea raised by the Petitioner. The defence is left open, without expressing any opinion.
Hate Speech - HELD THAT:- Speech should have no redeeming purpose, which means that 'the speech primarily carries no meaning other than hatred towards a particular group'. This is necessarily subjective and requires examination of good faith and good motives on the part of the speaker. 'No legitimate purpose' principle being abstract has difficulties, albeit is well documented. 'Good faith' and 'no legitimate purpose' exclusions are accepted as a good exception.
Decisions of this Court and High Courts interpreting Article 19(1)(a) and 19(2) of the Constitution, and Sections 153A, 295A and Clause (2) of Section 505 of the Penal Code - HELD THAT:- The present case, it is stated, does not relate to 'hate speech' causally connected with the harm of endangering security of the State, but with 'hate speech' in the context of Clauses (a) and (b) to Sub-section (1) of Section 153A, Section 295A and Sub-section (2) to Section 505 of the Penal Code. In this context, it is necessary to draw a distinction between 'free speech' which includes the right to comment, favour or criticise government policies; and 'hate speech' creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group - In consonance with the constitutional mandate of reasonable restriction and doctrine of proportionality in facts of each case it has to be ascertained whether the act meets the top of Clapham omnibus test and whether the act was 'likely' to lead to disturbance of the current life of the community so as to amount to disturbance of public order; or it may affect an individual or some individuals leaving the tranquillity of the society undisturbed. The latter and acts excluded on application of the top of Clapham omnibus test are not covered. Therefore, anti-democratic speech in general and political extremist speech in particular, which has no useful purpose, if and only when in the nature of incitement to violence that 'creates', or is 'likely to create' or 'promotes' or is 'likely to promote' public disorder, would not be protected - It is being fair to allow reasonable consensus to emerge despite differences. In essence, it implies non-discrimination of individuals or groups, but without negating the right to disagree and disapprove belief and behaviour. It signifies that all persons or groups are equal, even when all opinions and conduct are not equal. It also means use of temperate language and civility towards others. In the correct and true sense, undoubtedly 'tolerance' is a great virtue in all societies, which when practiced by communities, gets noticed, acknowledged and appreciated.
Interpretation of the statutory provisions - HELD THAT:- Clauses (a) and (b) to Sub-section (1) to Section 153A of the Penal Code use the words 'promotes' and 'likely' respectively. Similarly, Section 295-A uses the word 'attempts' and Sub-section (2) to Section 505 uses the words 'create or promote'. Word 'likely' as explained above, in our opinion, convey the meaning, that the chance of the event occurring should be real and not fanciful or remote - 'Promote' does not imply mere describing and narrating a fact, or giving opinion criticising the point of view or actions of another person-it requires that the speaker should actively incite the audience to cause public disorder. This active incitement can be gauged by the content of the speech, the context and surrounding circumstances, and the intent of the speaker. However, in case the speaker does not actively incite the descent into public disorder, and is merely pointing out why a certain person or group is behaving in a particular manner, what are their demands and their point of view, or when the speaker interviews such person or group, it would be a passive delivery of facts and opinions which may not amount to promotion.
In the context of 'hate speech', including the offences related to promoting disharmony or feelings of enmity, hatred or ill-will, and insulting the religion or the religious beliefs, it would certainly require the actual utterance of words or something more than thought which would constitute the content. Without actual utterance etc. it would be mere thought, and thoughts without overt act is not punishable. In the case of 'publication', again a mere thought would not be actionable, albeit whether or not there is an attempt to 'publish' would depend on facts. The impugned act should be more than mere preparation and reasonably proximate to the consummation of the offence, which has been interrupted. The question of intent would be relevant.
Validity of First Information Reports (FIRs) - HELD THAT:- The true test for a valid FIR, as laid down in Lalita Kumari, is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered Under Section 156(1) of the Code of Criminal Procedure to investigate. The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the Accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence. As per Clauses (1)(b) and (2) of Section 157 of the Code of Criminal Procedure, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence. Requirements of Section 157 are higher than the requirements of Section 154 of the Code of Criminal Procedure. Further, a police officer in a given case after investigation can file a final report Under Section 173 of the Code of Criminal Procedure seeking closure of the matter.
The prayer of the Petitioner for quashing of the FIRs is rejected but have granted interim protection to the Petitioner against arrest subject to his joining and cooperating in investigation till completion of the investigation - petition disposed off.
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2020 (12) TMI 1215
Seeking directions to defreeze accounts of petitioner - Section 33(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The applicant has annexed copy of notice, issued by the office of the Assistant Commissioner of State Tax, under Section 44 of the Gujarat Value Added Tax Act, 2003 (GVAT Act) dated 01.09.2020. However, on receipt of the said notice, the applicant has not responded, i.e. within seven days from the date of receipt of the notice, as stipulated in the notice itself.
It is the prime duty of the liquidator to apprise the competent authority of the State Tax office, Vadodara, about the present status and give appropriate reply to the said notice. Instead of doing that, approached this Adjudicating Authority - Under such circumstance, the liquidator may approach before the competent authority, i.e. office of the State Tax, and get redress and / or apprise the present status of the corporate debtor company with the relevant provisions as provided in the I&B Code. It is needless to mention herein that the Assistant Commissioner of State Tax have their own Adjudicating Authority as well as Appellate Authority to adjudicate upon any matter as per law so provided by the parliament.
The instant application is dismissed, as not maintainable.
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2020 (12) TMI 1213
Seeking the appellant and her daughter’s eviction from a residential house in North Bengaluru - case of appellant is that appellant is residing in her matrimonial home as the lawfully wedded spouse of the Fourth respondent and she cannot be evicted from her shared household, in view of the protection offered by Section 17 of the Protection of Women from Domestic Violence Act 2005 - Sections 3 and 4 of the Senior Citizens Act 2007 - HELD THAT:- In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman’s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.
A significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.
On construing the provisions of subSection (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant’s simple plea is that the suit premises constitute her ‘shared household’ within the meaning of Section 2(s) of the PWDV Act 2005 - The fact that specific proceedings under the PWDV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law. The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her estranged spouse (Fourth respondent) is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the PWDV Act 2005.
The claim of the appellant that the premises constitute a shared household within the meaning of the PWDV Act 2005 would have to be determined by the appropriate forum. The claim cannot simply be obviated by evicting the appellant in exercise of the summary powers entrusted by the Senior Citizens Act 2007. The Second and Third Respondents are at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum - Appeal allowed subject to directions issued.
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2020 (12) TMI 1212
Condonation of delay - Misc. Application filed by the assessee is late by 650 days - assessee wants to settle the issue under Vivad se Vishwas Scheme - HELD THAT:- The reasons for delay in filing present MA cannot be simply brushed aside, as the same are based on the facts narrated by the assessee and supported by an affidavit which deserve reasonable and lenient consideration in view of Rule 24 of the Income Tax (Appellate Tribunal) Rule 1963.
CBDT also explained vide Circular dated 4.12.2020 (supra) that MA pending as on 31st January, 2020 would also be covered under the Vivad se Vishwas scheme. In view of this, and coupled with the fact that the assessee has filed letter dated 4.12.2020 stating therein that the assessee wants to settle the issue under Vivad se Vishwas Scheme and the willingness of the assessee-company to avail the benefit of the scheme, which claim are supported by form No.1 and 2 (copies of which placed on record), we condone the delay in filing the MA., and allow the assessee for exercising option to avail benefit under VSV scheme. Considering the above facts and circumstances, the MA of the assessee is allowed and Registry is directed to list the appeal for hearing on 4th February, 2021.
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