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Showing 21 to 40 of 1183 Records
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2021 (6) TMI 1163
Permission to appellant to reexport the jewellery since the consignee had not cleared the consignment from the Customs - applicant submits that if the jewellery is not reexported immediately the designs get outdated resulting in huge pecuniary loss - HELD THAT:- The Final order has only set aside the penalties under Section 112, 114 and 114AA. It is undisputed that the jewellery was sent by the appellant to M/s Vee Ess Jewellers Pvt. Ltd., Noida for re-conditioning who had not cleared it from the Customs. No redemption fine has been imposed upon the applicant nor has any notice been issued to the applicant for confiscation of the jewellery. If Revenue succeeds in its appeal before the Hon’ble High Court, the penalties imposed upon the applicant may be restored.
The applicant is directed to submit a bank guarantee for Rs. 10 lakhs in favour of the Commissioner of Customs (Export), Air Cargo Complex, New Delhi with a copy of this Order and keep the Bank Guarantee alive till the disposal of the appeal filed by the Department before the Hon’ble High Court of Allahabad - application disposed off.
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2021 (6) TMI 1162
Seeking grant of bail - previous bail application stood rejected mainly on the ground that some cash has been recovered from some of the co-accused and some of the co-accused are still at large - Importance of an affidavit - HELD THAT:- Strangely, it is found that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate's clerk-in-charge. Curiously enough, the advocate's clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate's clerk can swear an affidavit claiming to be "looking after" a case before this Court in gross violation of the Orissa High Court Rules.
An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge - Noting the importance of an Affidavit, courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge.
It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove, except on interlocutory applications, on whose statements of his belief may be admitted, provided that the grounds thereof are stated.
It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate's clerk. This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court - Furthermore, a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant, the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts, statements, etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources.
This practice of advocate's clerks filing affidavits is unacceptable. The Registry is directed to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court, made in gross violation of Rule 26 of the Orissa High Court Rules.
This Bail Application being defective, is accordingly dismissed.
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2021 (6) TMI 1161
Failure to make the balance payment for auction sale - right to forfeit - forfeiture clause to be used as a penalty or not - HELD THAT:- The right to forfeit must be balanced against the corresponding principle enshrined in the rule against unlawful enrichment. While an auction purchaser is liable for the further expenses incurred by the secured creditor in conducting a second auction sale, the secured creditor cannot forfeit the entire money that has been tendered without having suffered loss commensurate with the quantum of money deposited and proposed to be forfeited. A forfeiture clause, at the highest, may indicate the maximum amount that may be forfeited to compensate the other party for the breach committed by the party in default. But the amount of forfeiture, unless it is a small percentage of the total consideration, cannot be well in excess of the loss or damage suffered by the party not in breach.
There are times that Courts presume that they have the extraordinary authority to enlarge the time. A kind of mercy jurisdiction is also resorted to at times without the Court being mindful of the fact that the exercise of such authority may prejudice another who may not be before the Court or may amount to granting undue favour to a person merely because he has approached the Court - The petitioner in either case should have been aware of his obligation to make the payment within the time the payment was due and merely because the second surge hit after February 18, 2021 or the lockdown was imposed sometime thereafter is not, by itself, enough ground to ignore the default committed by the petitioner.
Accordingly, the secured creditor will be free to advertise for the fresh sale of the assets. It is made clear that the petitioner will be entitled to participate in the auction for such purpose. If the petitioner is successful once again, in respect of both the properties, and if the quantum of bid in either case is lower, it is the lower amounts that the petitioner would have to pay together with all expenses incurred by the secured creditor in conducting the fresh sale and the diminution of price together with the interest thereon from the date of the original auction - Even if the petitioner is not the highest bidder, if there is a lower amount at which either property is sold, the petitioner will have to make good the difference together with the interest from the date of the original auction till the date of payment and the reasonable costs that the secured creditor may have incurred for conducting a fresh auction.
Petition disposed off.
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2021 (6) TMI 1160
Filing of fresh claims after Resolution Plan is approved - demand of outstanding water tax dues - HELD THAT:- The settled legal position is that once a resolution plan is approved by the CoC and meets the requirements of Section 30 (2) of the IBC, it is binding on all creditors, guarantors, employees and other stake holders. From the point of view of the company that is undergoing the reconstruction, it cannot after the resolution plan is approved, be faced with fresh claims pertaining to the very period for which the plan has been approved.
This has been explained by the Supreme Court in The Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta [2019 (11) TMI 731 - SUPREME COURT] where it was held that A successful resolution Applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who successfully take over the business of the corporate debtor.
In the present case, once the resolution plan was approved by the NCLT, and affirmed by the NCLAT in appeal, it was not open to Opposite Party No.2, which in fact participated in the resolution plan by submitting a claim, to again raise a demand for the very period covered by the resolution plan. In other words, no claim for the period between December 2009 up to 7th November 2017, the date of approval of the resolution plan could have been raised by Opposite Party No.2. Such demands to the extent they cover the period up to 7th November, 2017 are plainly unsustainable in law.
Opposite Parties 1 to 3 will revise their demand by limiting it to the period from 7th November, 2017 and in the first instance issue a show cause notice (SCN) to the Petitioner giving it a reasonably sufficient time to reply to it - Thereafter the Opposite Parties 1 to 3 will proceed to pass appropriate orders to finalise the demand after verifying the claim of the Petitioner that it has been paying the water tax dues from January, 2019 onwards - petition disposed off.
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2021 (6) TMI 1159
Fraudulent issue of GDRs - Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - Responsibility of directors - officers in default - Investigation in the issuance of the GDR revealed that the GDR was not issued with a proper consideration and without making adequate disclosure under the Listing Agreement - As alleged account charge agreement was an integral part of the loan agreement which allowed Whiteview to avail the loan in order to subscribe to the GDR issue which was fraudulent - charge against the appellant was that he was a Director and was part of the resolution by which the first resolution was passed by the Board of Directors for issuance of the GDR and for opening an account with Banco - HELD THAT:- Merely because the appellant was present when the resolution dated July 27, 2006 was passed, no conclusion can be drawn that this was the starting point of the fraudulent arrangement for issuance of GDR and for opening a bank account.
Resolution does not given any indication that the appellant had knowledge beforehand that the GDR issue was the purpose to manipulate the price or the market or that a fraud would be played upon the shareholders and the investors.
Finding of the WTM that the resolution of the Board of Directors dated June 27, 2006 provides execution of a pledge or execution of a charge agreement is wholly erroneous, perverse and based on no evidence. The resolution also does not stipulate that the proceeds could be utilized by the bank as security in connection with a loan taken by another entity.
Appellant cannot be debarred only on the basis of being present in the resolution of the Board of Directors dated July 27, 2006. In the absence of any evidence that the appellant had a role to play in the issuance of the GDR, the mere presence of the appellant in the resolution of the Board of Directors dated July 27, 2006 does not make him liable for the alleged fraud that had been committed by the Company.
After the judgment was reserved, the respondent have submitted a short note contending that the appellant was also chairman of the audit committee and remuneration committee which fact is reflected in the annual report of 2009-10 - As per MCA circular dated March 2, 2020 civil or criminal proceedings should not be unnecessarily initiated against the independent directors or non executive directors unless sufficient evidence exists to the contrary. We also find that Reserve Bank of India issued a circular dated April 23, 2015 indicating that non-whole time director should not be considered as a defaulter unless it is conclusively established that the default had taken place with his consent or connivance.
Cogent evidence must come forward to the effect that a non executive non promoter independent director was aware of the fraud that had been played by the Company or that he was involved in the issuance of the GDR or that GDR was being issued with his connivance. Only then such non executive non promoter independent directors should be booked. Merely because he was part of the resolution of the Board of Directors would not make him liable.
In the light of the aforesaid, the impugned order insofar as it relates to the appellant cannot be sustained and is quashed. The appeal is allowed. In the circumstances of the case, parties shall bear their own costs.
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2021 (6) TMI 1158
Withholding rate of tax in respect of dividend - India-Swiss DTAA - HELD THAT:- Revenue, cannot but accept that the issue raised in the present petition is covered by the judgement of this Court in ‘Concentrix Services Netherlands B V v/s. Income Tax Officer TDS & Anr.’[2021 (4) TMI 1051 - DELHI HIGH COURT]
Accordingly, impugned orders are set aside. Writ petition is disposed of in the aforesaid terms.
A certificate under Section 197 of the Income Tax Act, 1961 will be issued in favour of the petitioner, indicating therein, that the rate of tax, on dividend, as applicable qua the petitioner is 5% under India-Swiss DTAA.
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2021 (6) TMI 1157
Revision u/s 263 - Error computing capital loss - such loss is not allowable for the reason that the assessee has shown the cost of acquisition on entire three plots wrongly but in actual fact, the assessee sold his 30% share in three commercial plots admeasuring 3,310 sq. mtrs only as against 4.200 sq.mtrs. - as per CIT AO did not apply his mind at all on this working, without there being any discussion, he passed an assessment order - HELD THAT:- On perusal of the assessment order dated 17.06.2016 passed by the Assessing Officer, which is on record, determined the same amount as returned by the assessee wherein we note that no discussion or whatsoever made with regard to the purchase of plot, selling of the said plot and cost of acquisition etc., Taking into consideration the facts and circumstances of the case and the reasons recorded by the learned Principal learned Commissioner of Income-Tax in the impugned order, we find no infirmity in the order of the learned Principal Commissioner of Income-Tax in invoking the jurisdiction under Sec. 263 of the Act in quashing the assessment order dated 17.06.2016 treating the same as erroneous and prejudicial to the interest of Revenue and thus the order of the learned Principal Commissioner of Income-Tax is justified and thus, the grounds raised by the assessee are dismissed.
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2021 (6) TMI 1156
Seeking modifications in the guidelines issued in Bhandari Engineers-II - HELD THAT:- The modifications are directed to be incorporate in the guidelines.
These directions are being issued by this Court in exercise of powers under Section 30 and 151 and Order XXI Rule 41 of the Code of Civil Procedure read with Sections 106 and 165 of the Indian Evidence Act and Article 227 of the Constitution of India.
Paras 54 to 83 reproduced in paragraph 6 of this judgment are substituted in Bhandari Engineers-II Judgment and the modified judgment is attached hereto and is named as Bhandari Engineers-III Judgment. The Execution Courts shall henceforth follow Bhandari Engineers-III in execution cases.
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2021 (6) TMI 1155
Release of seized goods - gold and bullion of foreign origin and certain other electronic goods - curtailing the power of the adjudicating authority with a direction to pass an order in a particular fashion - HELD THAT:- Such a direction could not have been issued when the relief sought for by the writ petitioners was for allowing them to re-export the goods. Further more, we find that the learned Writ Court has gone into certain factual aspects which are not normally gone into by a Writ Court, prior to the commencement of the adjudication process.
The appellants have made out a prima facie case and the writ appeals are admitted - List these writ appeals for further directions on 15.09.2021.
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2021 (6) TMI 1154
Ex-parte proceedings has dismissed the appeal by CIT(A) of assessee on technical ground i.e. wrong mention of section under which the Order appealed is passed - CIT(A) dismissed the appeal of assessee on the ground that there is no provision to rectify mistake in Form No.35 - HELD THAT:- The assessee has mentioned section 143(1) instead of section 143(3) of the Act. It is trite law that rules of procedure are meant as hand made of justice to facilitate attainment of justice in an orderly way. Rigid interpretation of rules would sometime result in injustice and travesty of its purpose, therefore, the rules have to be interpreted liberally for advancement of justice.
Rejecting appeal by taking pedantic or hyper-technical view on technical defects would result in miscarriage of justice and multiplicity of litigation. Without expressing any opinion on merits of the issue involved in the appeal, we deem it appropriate to restore the appeal to the file of CIT(A) for deciding the appeal afresh on merits, in accordance with law.
The assessee is directed to rectify the defect(s) in Form No.35. Liberty is granted to the assessee to furnish modified grounds of appeal, if so advised. The impugned order is set-aside and the appeal of assessee is allowed for statistical purpose.
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2021 (6) TMI 1153
Extension of the Amnesty Scheme - cap on the late fees to be collected - HELD THAT:- In the present case, the facts would indicate that the petitioner has complied with the Scheme requirements substantially in time, except for last stage of remittance of the quantified amount, where there was a delay of 9 days.
This is an issue which several assessees all over the Country are facing and it is time that the Board apply its mind to the same and came out with a viable solution.
The petitioner is permitted to remit the amount quantified in Form 3 along with interest at the rate of 15%, in terms of Notification No.13 of 2016 dated 01.03.2016 and Section 75 of the Finance Act, 1994 under which service tax is levied, from 01.07.2020 till date of remittance before the third respondent, within a period of one (1) week from today - List on 29.06.2021.
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2021 (6) TMI 1152
Condonation of delay in filing application - genuine belief of appellant that no order in appeal existed before receiving of Sabka Vishwas letter from the department or not - malafide on part of appellant in late filing of appeal or not - HELD THAT:- Even though the delay in filing the appeal is to be considered liberally, but the fact remains that the appropriate reason should be assigned for condoning the delay. There is no justification shown by the appellant that despite of the fact that the case was finally heard and decided by the authority where he was represented by the counsel, he has made any attempt to find out the outcome of the case pending before the authority for more than nine years and only when a notice of demand was raised, he has filed the appeal. The only reason which has been given for delay in filing the appeal is that the counsel did not inform regarding the order passed by the authority. That cannot be considered to be a genuine reason for condoning the delay. The appellant himself should be vigilent about his rights. Once he is aware of the fact that the case is considered and heard by the authority, he should have pursued the matter or approached the counsel for knowing the outcome within a reasonable time. Waiting for the information to be given by the counsel for almost ten years, is not justifiable. Under these circumstances, we do not find it appropriate to condone the huge delay of approximately ten years in filing the appeal.
The impugned order reflects that the department has produced the relevant extract of the dispatch register to show acknowledgement card pointing out the delivery of the impugned order to the appellant within time. The same cannot be negated in terms of the affidavit which has been submitted by the appellant himself before the appellate authority. Thus, no illegality is committed by the appellate authority in not condoning the huge delay of approximately ten years. The impugned order passed by the appellate authority is a well reasoned and justified order.
There are no ground to condone the huge delay in filing the appeal. The impugned order has rightly been passed, which does not call for any interference in the present appeal - appeal dismissed.
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2021 (6) TMI 1151
Rejection of plaint against Defendant Nos. 4 to 6 for want of a cause of action under Order VII Rule 11(a) of the Code of Civil Procedure - It is contended that the Plaintiffs were ready and willing to pay the balance consideration, however, the Vendors refused to perform their part of the contract - HELD THAT:- The earlier decision rendered by the Supreme Court in the case of Church of Christ [2012 (7) TMI 1029 - SUPREME COURT] needs to be followed which has laid down that the plaint as a whole can be rejected against some of the defendants. The Learned Single Judge was therefore correct in holding that there is no legal embargo on rejecting the plaint as a whole against some of the defendants.
Whether the plaint does not disclose cause of action against Defendant Nos. 4 to 6 warranting rejection against them, in terms of Order VII Rule 11(a) of the Code? - HELD THAT:- What amounts to ‘cause of action’ is well settled by the Supreme Court in its various decisions. In this regard, we refer to the decision of the Supreme Court in the case of A.B.C. Laminart (P) Ltd. vs. A. P. Agencies [1989 (3) TMI 370 - SUPREME COURT], wherein the meaning of the expression “cause of action” is explained where it was held that Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
The Plaint discloses sufficient cause of action against Defendant Nos. 4 to 6. The pleadings are not a mere illusion of a cause of action. The Plaintiffs have demonstrated that they have a right to sue Defendant Nos. 4 to 6 - Whether Defendant Nos. 4 to 6 can be held liable to pay damages will depend on the merits of the case. However, a bare reading of the Plaint conveys that damages are also claimed from Defendants Nos. 4 to 6, which is relevant.
Under the scheme of Order II Rule 2 of the Code, it is necessary that parties must claim all the reliefs as available to them at the time of filing of the suit. Any intentional omission debars a second suit on the same cause of action. A plaintiff is not required to file a separate suit for other reliefs, where the other reliefs flow from the same cause of action. The relief of specific performance and the alternative claim of refund of earnest amount emanate from the same cause of action, and therefore a second suit for recovery of money may be untenable if filed by the Plaintiffs against Defendant Nos. 4 to 6.
Thus, a plaint can be rejected as a whole against some of the defendants - the Plaint in the present Suit discloses sufficient cause of action against Defendant Nos. 4 to 6 in context of the Plaintiff’s alternate claim for refund of earnest amount - Notice of motion dismissed - appeal allowed.
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2021 (6) TMI 1150
Assessment u/s 153A - Unexplained cash credits u/s 68 - whether incriminating material found during the course of search pertaining to investment made by various group members in share capital of the assessee company or receipt of cash/unaccounted money against sale of investments by the assessee company found? - HELD THAT:- Addition made u/s 68 cannot be upheld and are required to be deleted as no incriminating material found during the course of search.
Further additions made by Ld. A.O. by estimating unexplained expenditure as required to be deleted and held that these additions are beyond the scope of AO passed u/s 153A of the Act and finally addition made u/s 68 and unexplained expenditure for both the Assessment Years were deleted.
‘On-money’ receipt - Whether same will be taxed in the year in which sales are recognized in the books of account and that too at the rate are 17.5% of the ‘On-money’ receipt? - HELD THAT:- As settled law that on-money is required to be taxed in the year in which amount received through cheque is taxed. Addition on account of 22 unsold units have been offered in the year of sale in subsequent years hence addition of the same cannot be made considering that the assessee has made any unaccounted sale of such units during A.Y. 2014-15.
And further stated that similar units sold by other group cases being M/s. autocare Services, M/s. Sumangal Enterprise etc. which have filed Settlement Petition before Hon’ble Income Tax Settlement Commission, Mumbai has estimated net profit @ 17.5% being profit estimated on on-money as well as turnover shown in books of account. And further stated that it is settled legal law and entire on-money cannot be taxed but only profit embedded on alleged on-money can be taxed.
Additions made for 51 units in AY 2014-15, the amount worked (subject to verification by the AO) out above for 30 units only remains for A.Y. 2014-15, the amount to be worked out for 18 units and 2 units as discussed before are to be taxed in A.Y. 2015-16 and A.Y. 2016-17 respectively and the amount to be worked out for remaining/unsold 1 unit is to be taxed in the year when it may be sold.
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2021 (6) TMI 1149
Seeking grant of Bail - Smuggling - prohibited goods - Bharath Jeera Goli Candy Mukh - prohibited goods or not - service of summons u/s 108 of Customs Act - HELD THAT:- Considering the gravity of offence committed by the petitioner and the quantity of contraband seized is very high and bail is prohibited u/s. 37 of NDPS Act, this Court is not inclined to grant bail to the petitioner.
Accordingly, this Criminal Original Petition is dismissed.
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2021 (6) TMI 1148
Addition u/s 68 - unsecured loans and disallowance made on account of interest and commission - HELD THAT:- No good reason to interfere and reverse the findings of the CIT(A), especially when the facts being identical to the A.Y.2013-14 and A.Y.2014-15 wherein the Tribunal deleted the addition made u/s. 68 of the Act which order has been followed by the Ld.CIT(A). Thus, we do not find any infirmity in the order passed by the Ld.CIT(A). Grounds raised by the revenue are dismissed.
Penalty u/s. 271(1)(c) - addition u/s. 68 in assessment proceedings - HELD THAT:- we observe that the Tribunal has deleted the quantum addition made by the AO u/s. 68 of the Act. Since the quantum addition has been deleted by the Tribunal the Ld. Commissioner of Income-tax (Appeals) has rightly deleted the penalty as no penalty will survive. Decided against revenue.
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2021 (6) TMI 1147
Classification of goods proposed to be imported - Betel Nuts such as API Supari - Chikni Supari - unflavoured Supari - flavoured Supari - Boiled Supari (all packed in consumer packing and bulk packing) - to be classified under heading 080280 of the schedule to the Customs Tariff Act, 1975 or under Chapter heading 21069030 of the Customs Tariff.
HELD THAT:- The basic raw material for each of the five goods is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 080280. It is noted that Chapter 8 covers only edible nuts; inedible nuts and fruits being excluded by virtue of Chapter Note l; and that betel nut/supari are masticatory. However, these items have been subjected to certain processes and added with certain materials, resulting in the question being posed whether the said processes and mixing/addition of certain materials are substantive enough to lead to the said five goods be considered as "preparation of betel nut" that would make them classifiable under Chapter 21 by virtue of Supplementary note 2 of Chapter 21. Alternatively, whether the processes carried out on the same for cleaning, preserving and making them more attractive to certain tastes/ preferences are too minor to fall short of rendering them as preparations of betel nuts. Further, it would be inadvisable and inappropriate to approach the issue of classification of the said five goods solely with the prism of the positive nature of Supplementary Note 2 to Chapter 21.
The processes to which raw betel nuts have been subjected to obtain API supari, Chikni supari, unflavoured supari and boiled supari are squarely in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as "preparations" of betel nut, which is sine qua non for a good to be classifiable under Chapter 21.
Flavoured supari - whether the addition of special flavouring agents would render the betel nuts into preparations of betel nuts, classifiable under Chapter 21? - HELD THAT:- The judgment of the Hon’ble Supreme Court of India in the case of M/s Crane Betel Nut Powder Works [2007 (3) TMI 6 - SUPREME COURT] and of the CESTAT, Chennai in the case of M/s Azam Laminators Pvt. Ltd. [2019 (3) TMI 782 - CESTAT CHENNAI] [where scented betel nut was being manufactured by cracking of dried betel nut into small pieces, and thereafter, gently heating it with addition of vanaspati oil, sweetening and flavouring agents and marketed in small pouches as Nizam Pakku (in Tamil)/Betel Nut (in English), the Hon'ble CESTAT held the resultant product classifiable under sub-heading 08029019 of Central Excise Tariff and not under 21069030 as supari for period after 07.07.20091 are relevant. Put simply, these decisions clearly imply that addition of flavouring agents do not change the character of the good, meaning in the present case betel nut would continue to remain betel nut and not become preparation of betel nut.
In recent judgement of the CESTAT, Chennai, in the case of S. T. Enterprises [2021 (3) TMI 27 - CESTAT CHENNAI], the Hon'ble Tribunal has addressed the question whether by mere boiling and drying whole betel nut it would merit classification under 21069030 The Hon'ble Tribunal has held that since the import goods are betel nuts whole, these would merit classification under Chapter 8.
Thus, all the five goods placed before me for consideration, i.e., API supari, chikni supari, unflavoured supari, flavoured supari and boiled supari, merit classification under Chapter 8 of the First Schedule to the Customs Tariff Act, and more precisely, under the heading 0802. This is so in view of the fact that the processes to which raw green fresh betel nuts have been subjected to obtain the said five goods are squarely in the nature of processes mentioned in Note 3 to Chapter 8, and have not materially changed the essential character of betel nuts - Further, the said five goods are not classifiable under sub-heading 21069030, as contended by the applicant. since they have not attained the character of "preparations" of betel nut, which is sine qua non for a good to be so considered.
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2021 (6) TMI 1146
Prayer for vacation/modification and/or alteration of the interim order of stay passed on 19.11.2020 - fixation of tariff vis-a-vis entitlement as per the PPA - power to adjudicate and/or to refer any dispute for arbitration - Section 86(1)(f) of Electricity Act, 2003 - It is submitted that as a matter of abundant caution, the respondent no. 2 had approached this Court seeking permission to refer the matter to arbitration, which was permitted by this Court by the order dated 08.03.2017.
In light of the order dated 08.03.2017 passed by the coordinate Bench having attained finality whether and any interference with the impugned orders would have the effect of nullifying the said order? - HELD THAT:- There is nothing on record which shows that this Court had previously been called upon in W.P. (C) 4148/2016 and I.A. (C) 1784/2016 to decide whether the exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was a adjudicatory function. Thus, in this case, the question of jurisdiction has been raised. Accordingly, the Court is of the considered opinion that as jurisdiction cannot be conferred by consent, notwithstanding that there was no objection by the petitioner when orders dated 20.07.2016 and 08.03.2017 were passed, notwithstanding that the said orders had attained finality, the question of jurisdiction can be entertained in this writ petition. Resultantly, the Court is of the considered opinion that interference, if any, with the impugned orders passed by the respondent no. 2 would not have the effect of nullifying the previous orders dated 20.07.2016 and 08.03.2017, as appointment or the Arbitral Tribunal, and rejection of petition for condonation of delay and resultant dismissal of the review petition were not the subject matter of challenge in the previous writ petition.
The question is answered in the negative and against the respondent no. 1 by holding that the instant order is not found to nullify the order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) No. 1784/2016 in any manner whatsoever.
Whether the writ petition is barred under the principles of waiver, estoppel and acquiescence? - HELD THAT:- When orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission, the Supreme Court of India had already interpreted the scope of Section 86(1)(f) of the Electricity Act, 2003 in the case of Utility Users' Welfare Association [2018 (4) TMI 1945 - SUPREME COURT], that while exercising power under the said provision, the Commission was performing judicial function. Therefore, the petitioner has been able to demonstrate that in paragraph 116 of the case of Utility Users' Welfare Association - it has been held in the said case that "the absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act."
Under such circumstances, the Court is inclined to accept the submissions made by the learned counsel for the petitioner that in the light of the decision in the case of Utility Users' Welfare Association, the previous order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) 1784/2016 would not constitute a binding precedent when orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission - The question is answered in the negative and in favour of the petitioner that the present writ petition is not barred under the principles of waiver, estoppel and acquiescence.
Whether the delay in making the challenge in fatal to the maintainability of the writ petition? - HELD THAT:- As the orders dated 21.09.2018 and 06.10.2018, suffer from the vice of coram non judice, the said orders are non est and therefore, under the facts unique to this case, the belated challenge by way of this writ petition is not found to be fatal to the instant writ petition.
Whether any adjudicatory process was involved in passing of the orders dated 21.09.2018 and 06.10.2018 by the respondent no. 2 Commission? - Whether the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference? - HELD THAT:- The Court is inclined to hold that adjudicatory process was indeed involved in passing of the orders dated 21.09.2018, 06.10.2018 and 11.02.2020 by the respondent no. 2 Commission. However, as there was no Judicial Member in the respondent no. 2 Commission, the said orders are found to be vitiated by principle of coram non judice - the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference by setting aside and quashing the said two orders.
Application disposed off.
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2021 (6) TMI 1145
Addition u/s 69A - undisclosed and unexplained income of the assessee being Gold and Jewellery seized - presumption u/s 132(4A) r.w.s. 292C takes the AO to a conclusion that the gold in question belongs to the assessee, as it was seized from the assessee and as the assessee could not produce cogent material to rebut the aforesaid presumption the additions have been made - HELD THAT:- The original challans seized with the gold bullion and gold jewellery supported the claim of the assessee. In the statement recorded u/s 131 assessee reiterated this contention.
DDIT (Inv.), Kolkata and Investigation Wing at Chennai conducted verification with M/s. B.B. Jewellers and M/s Lalithaa Jewellery Mart Pvt. Ltd. The claim of the assessee has been supported and proved by the independent verification done by the Investigation Wing with the third party Jewellers in Chennai. Lack of distinctive identification numbers of the gold bullion on the challans seized, along with the gold from the assessee, was the grounds on which the AO made the addition - CIT(A) has rightly stated that this cannot be a basis of making this addition. Decided against revenue.
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2021 (6) TMI 1144
Preferential allotments of shares - promoter related entities - price manipulation activities - LTCG in order to convert unaccounted income into accounted income with nil payment of tax as LTCG was exempt from tax -basis for holding the appellants guilty of Section 12A(a),(b) and (c) of the SEBI Act read with Regulation 3 and 4 PFUTP Regulations is, that a prudent investor would not have purchased the shares of a Company which had weak fundamentals and financials and that no one in their right mind would buy the shares unless there was a pre-existing arrangement of reaping in huge profits.
HELD THAT:- We are of the opinion that the role of the preferential allottees, exit providers and LTP contributors were far more serious than the role of the appellants. The role of the appellants in the instant case is, that they had purchased the shares off market from the six entities who in turn have purchased it from the promoter Company. Whereas, the preferential allottees have been let off, the appellants have been penalized only on the ground of being in proximity with the Company and its directors which finding is perverse in as much as we find that there is no direct connection of the appellants with the Company, its promoters, promoter company or noticees nos. 9 to 11, 75, 77 to 80 who were the main manipulators and the kingpin in the entire scheme.
The six entities are not promoter related entities. They have acquired the shares from the promoter Company but they do not become the promoters. The fact that they were de facto controlling the Company is not a relevant issue as it still does not make them promoters of the Company. Thus, merely because the appellants had purchased the shares through off market from the six entities does not and cannot lead to a conclusion that the appellants are connected with the Company or with noticee no. 9 or with promoter related entities or its directors. The finding that appellants were in close proximity or had a connection with the Company, directors etc. is patently erroneous.
The six entities had purchased the shares from a promoter Company, namely, noticees 15 to 19 and thereafter the six entities sold it to the appellants. Whereas the notices no. 15 to 19 have been exonerated by the impugned order, the appellants have been booked for having a close proximity with the Company. We find that the appellants have not purchased the shares from the Company.
The issue of weak fundamentals would equally apply to the preferential allottees who were allotted the shares at rate of Rs. 10/- per share but these preferential allottes have been let off. Therefore the standard of weak fundamentals cannot be applied in the case of the appellants especially when on the same footing the preferential allottees have been let off. We are of the opinion that it is business prudence to purchase at a lesser price and sell it at a higher price when the market is up thereby earning profits. Making profits in our opinion cannot be termed illegal or manipulative or fraudulent or violative of the PFUTP Regulations.
We are also find that the WTM has given a categorical finding that noticee no. 9 was the master mind who manipulated the price with Company and its directors and intermediaries for the benefit of the preferential allottees. These preferential allottees have been let off. We find that there is no direct connection of the appellants with noticee no. 9. There is no involvement of collusion or price manipulation of the appellants and thus there cannot be any violation of regulations 3 & 4 of the PFUTP Regulations.
Six entities had an active role to play in the management of the affairs of the Company from February / March - 2012 onwards. A direct connection has been established between the six entities and the Company and noticee no. 2. The six entities had also acquired the preferential shares of the promoters and therefore we are also of the opinion that the six entities were closely associated with the Company from February / March – 2012 onwards and throughout the period when the preferential allotments were made.
We are, thus, of the opinion that the six entities were closely connected with the Company and its directors and had a role to play in the formulation of the scheme of issuance of preferential allotment, pumping of the price through LTP contributors and providing an exit mechanism for the preferential allottee. Consequently, in our opinion, the order of the WTM insofar as the six entities are concerned does not suffer from any manifest error of law.
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