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2021 (11) TMI 996
Income tax liability of employees - Remission of income tax liability borne on behalf of the employees is to be added to the income under the head "Income from business or profession" u/s 41(1)(a) - assessee had computed its income in terms of Section 44BB - HELD THAT:-As established by the assessee that this liability of income tax born by the assessee on behalf of its employees was pertaining to which year and Whether the assessee has offered its income for that year applying the provisions of Section 44 BB of the act or not. If the liability pertains to the year for which the assessee has offered its income by applying the provisions of Section 44 BB of the act than once again this remission of liability cannot be taxed u/s 41 (1) of the act for the impugned assessment year i.e. assessment year 2011 – 12.
It is also to be seen that assessee is setting of losses for previous year as evident from the assessment orders. Therefore, it is also possible that earlier years the assessee has not opted for presumptive income scheme u/s 44 BB of the act but has offered income based on its accounts. In such circumstances, remission of income tax liability if it pertains to those year for which the assessee is claiming set-off of losses by offering its income based on its regular income and expenditure accounts, would definitely be chargeable to tax in this year u/s 41 (1) of the act. These facts are not available on record; it is also not available with the assessee readily at the time of hearing. As it is not available before hand that for which assessment year, this remission of income tax liability pertains to and whether in that year how the income of the assessee has been offered i.e. whether u/s 44 BB of the act or at the actual income - we set aside this ground of appeal back to the file of the learned assessing officer with a direction to the assessee to show with evidence for which assessment year the income tax liability of employees was considered as an expenditure and how the income of the assessee was offered for that year.
Chargeability of interest on income tax refund as business income and taxable at maximum marginal rate of tax by the AO and upheld by the learned CIT – A - HELD THAT:- No reason to deviate from the orders of the lower authorities wherein the decision of BJ Services Company Middle East limited [2007 (3) TMI 311 - ITAT DELHI-H] is followed and the assessee has a permanent establishment in India is not denied. In the result ground number 2 of the appeal of the assessee is dismissed.
Income accrued in India - interest u/s 244A received and computed the tax thereon at the rate of 40% as applicable to foreign companies as business income - whether assessee has a permanent establishment in India or not? - HELD THAT:- Merely having a project office in India cannot result into a permanent establishment of the assessee in India. Therefore, it is now apparent that assessee does not have a permanent establishment in India.
The honourable High Court in Director Of Income Tax versus Pride Foramer [2013 (12) TMI 606 - UTTARAKHAND HIGH COURT] after reading article 12 in case of India France Double Taxation Avoidance Agreement held that plain reading of the provisions of the Double Taxation Avoidance Agreement makes it absolutely clear that some articles (1) and (2) will apply interalia when the recipient of interest does not have a permanent establishment in the country where he has received the interest. Therefore, in the present case the assessee is entitled to take the benefit of article 12 of the Double Taxation Avoidance Agreement, as there is no permanent establishment in India.
Therefore the interest received on income tax refund of the assessee is subject to taxation as per article 12 (2) of the Double Taxation Avoidance Agreement at the rate of 15% of the gross amount of interest as income. Accordingly reversing the orders of the lower authorities, we allow ground number 1 and 2 of the appeal of the assessee.
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2021 (11) TMI 995
Levy of penalty u/s 114 (iii) and Section 114AA of the Customs Act, 1962 - criminal offence of abetment - Availment of duty draw-back wrongly and fraudulently - allegations of aiding and abetting said Mr. Sajjan Kumar so as to make those fraudulent exports of hand woven carpets and to wrongly avail the corresponding duty draw back - retraction of statements - HELD THAT:- In the present case apparently and admittedly, the act / omission on part of the appellant in improperly conducting the Inquiry of the fraudulent export of hand-woven carpets is the act after the impugned fraudulent export got unearthed and after the mastermind behind those export, Shri Sajjan Kumar, had already availed the unreasonable, unjustified, illegal duty draw-back benefit. There is no evidence for the present appellant to at all be the beneficiary of the said illegal benefit being drawn by said Shri Sajjan Kumar.
Irrespective the said statement has been retracted, but there is no iota of utterance in any of the statements of Shri Sajjan Kumar about the present appellant or the Co-Inspector Shri Subhash Chand to ever have facilitated him prior he exported those carpets. In absence thereof, the only lacuna on part of the present appellant is that they conducted inquiry about fair market rate of the hand-woven carpets from such firms which were later found to not at all to be involved in export of carpets and hence were not competent to provide any information to these Inspectors about the rate of the carpets. This act, to my opinion, is nothing more than an act of conducting investigation negligently in casual and improper manner. These Inspectors, in their statements have acknowledged them to be casual while conducting the impugned investigation.
To constitute a criminal offence of abetment as punishable as defined under Section 107 of Indian Penal Code, 1862, there has to be an intention to instigate, to conspire or to aid/facilitate a person to do or abstain from doing something, which is a defined penal offence and that the abettor is the part of the conspiracy with an intent to draw back benefit out of the alleged offence. Apparently and admittedly, there is nothing on record produced by the Department to show the involvement of the appellant and the Co-Inspector for insighting or conspiring with or aiding or facilitating said Sajjan Kumar at the stage prior he made the exports. There is no evidence for the appellant and the Co-Inspector to be the beneficiary of the amount of duty draw-back illegally availed by said Sajjan Kumar - the act is not sufficient to constitute a penal offence as that of abetment for the impugned fraudulent exports.
For imposition of penalty under Section 114AA the information should knowingly be false. There should have been an intention to give false or incorrect statement. But as already mentioned above that lapse in obtaining the correct information from improper source cannot be called as an intentional act of giving wrong information. Hence no question arises for imposition of penalty - appeal allowed - decided in favor of appellant.
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2021 (11) TMI 994
Liquidation of the Corporate Debtor - Constitution of CoC by the Resolution Professional in accordance with IBC provisions - Whether the recommendation for liquidation of Respondent No. 1 was taken by the CoC in contravention of IBC provisions? - Section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- While the CoC took a decision for going for liquidation of the Corporate Debtor, the Appellants have challenged the very basis of constitution of CoC and fixing of voting rights by labeling it illegal, done to provide undue and unfair advantage to Respondent No. 4. Moreover, the Appellants have also claimed that the CoC took a decision for liquidation without following the procedure under CIRP stipulated in the IBC. The basic reason for seeking Resolution Plan under CIRP is to ensure that the Corporate Debtor can continue to function as a going concern, while taking care of interests of its creditors. Liquidation is the last resort which implies corporate death of the company. For the Corporate Insolvency Resolution Process to result in successful resolution of the corporate Debtor, preparation of a correct information memorandum is a must, which may result in work able resolution plans.
In the present case, it is found that information memorandum was not prepared with full and correct details of assets and liabilities of the Corporate Debtor. The RP also did not pursue his application u/s 19(2). As a result the CoC decided to abandon the step of inviting of EOI for Resolution Plan.
A duty has been cast on the RP under section 25 of IBC where he has to take immediate custody and control of assets of Corporate Debtor, including the business record of the Corporate Debtor; and furthermore a duty has been passed on the Resolution Professional under section 25(2)(g) to prepare an information memorandum in accordance with the provisions of IBC. Section 29 of the IBC requires the Resolution Professional to prepare an information memorandum in such form and manner contain such relevant information as may be specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 for formulating a Resolution Plan.
It is clear that the Resolution Professional has resorted to very novel and ingenious way of circumventing the duties imposed upon him in the IBC for preparation of information memorandum, exclusion of time to extend CIRP period and inviting Expression of Interest for Resolution Plan for the Corporate Debtor. He, with active support of Nitin Goel, representation of Respondent No. 4, managed to deal with these important issues in a very superficial and objectionable manner. Such action of RP betrays of prejudicial action reeking of favourtism for Respondent No. 4 - the CoC was not constituted in accordance with the provisions of IBC. In the matter, the CIRP was not pursued with fairness and due diligence by the Resolution Professional and the resolution for liquidation of the Corporate Debtor was taken in a meeting with an improper voting share ascribed to Respondent No. 4 and taken in unseemly haste.
The CoC as constituted in the CIRP of the Corporate Debtor was not in accordance with provisions of IBC, therefore its constitution is quashed - claims of various financial creditors including home buyers should be appropriately fixed.
Matter remanded to the Adjudicating Authority for taking action as directed, in accordance with the provisions of IBC and law - matter on remand.
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2021 (11) TMI 993
Liquidation of Corporate Debtor - Section 33 of the IBC - review power - Recall power - error apparent on the face of record or not - HELD THAT:- The term ‘Error apparent on the face’ of the proceedings is held to be one based on clear ignorance or disregard of the provisions of Law as per decision of the Hon’ble Supreme Court in LILY THOMAS, ETC. VERSUS UNION OF INDIA & ORS. [2000 (5) TMI 1045 - SUPREME COURT]. Further, in the decision of the Hon’ble Supreme Court in HARI VISHNU KAMATH VERSUS SYED AHMAD ISHAQUE AND OTHERS [1954 (12) TMI 22 - SUPREME COURT] it is held that ‘it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record’.
Review power - HELD THAT:- In the decision of Hon’ble Supreme Court in Patel Narshi Thakershi V. Pradyumansinghji Arjunsinghji reported in (1971) 3 SCC Page 844, at spl page 847 it is observed and held that ‘the power of review is not an inherent power. It must be conferred by Law either specifically or by necessary implication’. No wonder, the ‘Tribunal’ has no inherent power to review, as per Section 114 and Order 47 of the Civil Procedure Code.
Tribunal's Power - HELD THAT:- Mere glance of Section 420(2) of the Companies Act, 2013 unerringly points out that the ‘Tribunal’ has power to rectify its order, if there is any mistake apparent from the record, but it has ‘no power’ of review of its own order. In this regard, this ‘Tribunal’ pertinently points out that Rule 154 of the National Company Law Tribunal Rules, 2016 enjoins the ‘Tribunal’ to rectify its order, if there is any clerical or arithmetical mistake in the order of the Tribunal or any error therein arising out of any accidental slip or omission of its own motion or an application of any party by means of rectification.
Recall power - HELD THAT:- It is significantly pointed out by this ‘Tribunal’ that Hon’ble Supreme Court in the decision in SRI BUDHIA SWAIN & ORS. VERSUS. GOPINATH DEB & ORS. [1999 (5) TMI 596 - SUPREME COURT] has prescribed the conditions for recalling an order (i) the proceedings suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent (ii) There exists fraud or collusion in obtaining the judgement (iii) There has been a mistake of the Court prejudicing a party, or (iv) a judgement rendered in ignorance of the fact that a necessary party has not been served at all or had died and his estate was not represented.
In the instant case, on going through the impugned order dated 11.06.2021 in IA No.2034/2021 in (IB) 702(ND)/2018 this Tribunal finds that the ‘Adjudicating Authority’ at para 12 had observed that it has no power to review its own order but traversed beyond its purview and reviewed the order dated 04.07.2019 in CA No.827/2019 by concluding that once a liquidation order was passed there is no scope to recall, which is contrary to the order passed by it on 04.07.2019 where it observed that the pending application will be disposed and then liquidation be directed.
The ‘Adjudicating Authority’ (National Company Law Tribunal, New Delhi II) is directed to restore the application to its file and to pass fresh orders on merits, in accordance with law, of course, after providing adequate opportunity of hearing to both sides, by permitting them to raise all factual and legal pleas as expeditiously as possible - application allowed.
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2021 (11) TMI 992
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default made against the Credit facilities extended by the Banks - Personal Guarantor - existence of debt and dispute or not - HELD THAT:- In view of the clauses of the Deed of personal Guarantee, it is stated that the demand of the Respondent Bank is invoked and the continuous Deed of personal Guarantee executed by the Applicant is well within limitation and not barred.
It is further averred by the Applicant/Debtor that no Application under this Chapter has been admitted in respect of the Applicant/Debtor during the period of 12 months preceding the date of submission of this Application. The Application under consideration is in the prescribed Form and contains the required details. Thus, prima facie the requirements of Section 94 are fulfilled.
The Applicant or his Counsel and the Registry/Court Officer are directed to serve the copy of this Order along with copy of the Application and documents immediately on the Resolution Professional so appointed by all modes for information and compliance - List the matter on 15.12.2021.
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2021 (11) TMI 991
CENVAT Credit - common input services used for providing the taxable services and trading activities - non-maintenance of separate records - Rule 6 (3A) of the CENVAT Credit Rules, 2004 - HELD THAT:- Appellant clearly state that they have provided the records year wise in as per Annexure VII, to that letter to the adjudicating authority. Commissioner in the impugned order do not contradicts the same nor records any finding in respect of the Annexure VII. In fact in the reply submitted by the Appellant then claimed in respect of the calculation errors, in the show cause notice, if these calculation errors while computing the demand are taken into account then major chunk of demand itself cannot survive. However we find that these calculation errors themselves have not been considered and adjudicated by the impugned order.
On the examination of the impugned order we can only observe that impugned order cannot be called a speaking order in any manner. Except for the brief discussion in para 6 and 7, in the “Discussion and Findings” recorded by the Commissioner we do not find anything anywhere in the entire order, considering the allegations made in the show cause notice and the submissions made by the appellants while contesting the same. The only reason for the rejection of the claims made by the appellants is that they have not furnished the relevant information.
There are no merits in impugned order as it is devoid of any reasoning and is without consideration of the submissions made by the appellant - the matter is remanded back to the original authority for consideration - appeal allowed by way of remand.
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2021 (11) TMI 990
Non-payment of service tax - service of covering of shed/constructing a common auction platform to M/s. Rajasthan State Agriculture Marketing Board - Department after observing that the appellant has provided work contract service to RSAMB during the financial year 2012-2013 alleged that service tax has not been paid by the appellant - whether the construction of common auction platform for RSAMB is the taxable service or not? - HELD THAT:- Any service provided to an agriculture produce marketing committee or any service relating to agriculture or agricultural produce even that of construction for infrastructure for agriculture or agriculture produce specially when provided to a government / local authority acting under statute meant for such use is different from Commerce or Industry, tax is not leviable on such service - In the present case, there is no denial even by Commissioner (Appeals) that RSAMB is the Governmental body and the construction of platform is meant to be used for the agriculture produce. The only reason for which Commissioner (Appeals) has confirmed the demand is that RSAMB is the body corporate engaged in the business of sale and purchase of movable as well as immovable property, export of fruits and vegetables, renting of immovable property to commercial establishment and operating the e-private market/ private market, accordingly, concluded that the construction of platform and shops are not for the use other than the commerce or industries.
The order-in-original has specifically recited that no service tax has been collected by the appellant from RSAMB which is governmental body which got platform constructed with objective to facilitate the farmers however without charging any consideration. Commissioner (Appeals) also in the impugned order has recited about the certificate of competent authority as being produced by the appellant certifying therein that the structure is used by the farmers free of charge for post harvest operation. The said certificate is sufficient to falsify the findings of the Commissioner (Appeals) that the platform was for the use as that of commerce and industry - The fact remains is that the service have been provided to a legal body existing under the statute under the mandate of article 243 (W) of Constitution of India.
In view of the apparent and admitted facts irrespective that nature of impugned service is that of work contract service but there is no liability on the appellant to pay the service tax appellant being a statutory body and service provided is in negative list being meant for agriculture produce with no element of business or profit.
Demand has therefore, wrongly been confirmed even for the period 1.4.2012 to 30.6.2012 - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 989
Dishonor of Cheque - legally enforceable debt or not - pure and simple civil dispute or not - proceedings challenged primarily on the ground that the cheque, alleged to have been dishonored, was not issued by the petitioner in favour of the respondent for any legally enforceable debt - HELD THAT:- It is true that if the dispute has the contours of dispute of civil nature and does not constitute a criminal offence, this Court may be justified to quash the complaint or the criminal proceedings as the case may be, in the exercise of inherent power under Section 482 Cr.P.C. The criminal proceedings ought not to be permitted to degenerate into weapon of harassment.
It is trite law that that the offence under Section 138 of N.I. Act is always committed in the course of civil transactions and if a cheque is given by the accused to the complainant in the discharge of his civil liability, which, of course, must be the legally enforceable debt or liability and same, if presented before the Bank, is returned unpaid by the Bank for insufficiency of funds or that it exceeds the amount arranged to be paid, the complainant may serve a notice upon the accused to make the payment within thirty days from the receipt of the said notice - the complaint filed by the respondent, if viewed in this context, does not lack the ingredients of the offence under Section 138 N.I. Act.
In view of the clear provisions of Sections 138 and 139 of N.I. Act and the legal position on the point explained by the Hon’ble Supreme Court, there is hardly any reason to doubt the proposition that the probable defence of the accused in a complaint under Section 138 of N.I. Act, that the cheque issued by him which was later dishonored was not for any legally enforceable debt or liability, can be raised by the accused only at the stage of leading evidence and cannot be considered by the Magistrate at the threshold at the time of taking cognizance. It, however, remains to be seen that in a case where, from a plain reading of the complaint and the documents appended thereto, it clearly comes out that the cheque issued by the accused, as per own showings of the complainant, was not for discharge of any legally enforceable debt or other liability.
Petition dismissed.
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2021 (11) TMI 988
Dishonor of Cheque - fine sufficient enough to meet the liability of the cheque issued, or not - what should be the approach of the trial Court while awarding punishment to an accused convicted for commission of offence under Section 138 of N.I. Act? - whether the trial Court should, with or without the punishment of imprisonment, impose fine which is sufficient enough to meet the liability of the accused towards the complainant as represented by the bounced cheque?
HELD THAT:- From a reading of provisions of Section 138 of N. I. Act in the context of laudable object sought to be achieved by Chapter XVII of N.I Act, it is abundantly clear that the Criminal Court while convicting an accused for commission of offence under Section 138 of N.I. Act, cannot ignore the compensatory aspect of remedy and the compensatory aspect can only be given due regard if the sentence imposed is at least commensurate to the amount of cheque, if not more, so that this fine, once imposed, can be appropriated towards payment of compensation to the complainant by having resort to Section 357 of Cr.P.C. Before we proceed, it would be appropriate to set out the provisions of Section 357 as well.
The law with regard to grant of compensation under Section 357 (3) of Cr.P.C in the cases arising under Section 138 of N.I. Act is now well settled. As observed above, the object of Section 138 of N.I. Act is not only punitive, but is compensatory as well. As the supreme Court says, the compensatory aspect must receive priority over the punitive aspect of Section 138 of N. I. Act - it cannot be contended that while imposing sentence under Section 138 of N.I.Act, the Court should exercise its discretion in imposing fine by having regard to Section 357 (3) of Cr.P.C. Rather, the Criminal Court should bear in mind the laudable object of engrafting Chapter XVII containing Section 138 to 142 of NI Act and give priority to the compensatory aspect of remedy.
In the instant case, the trial Court has miserably failed to take all these aspects into consideration and has awarded ₹ 2.00 lac, to be paid as compensation to the complainant, when admittedly the cheque amount was to the tune of ₹ 10.00 lacs. The petitioner, who was complainant before the trial Court, has been deprived of a sum of ₹ 10.00 lac which amount had become payable to him on the date of issuance of cheque i.e 10.12.2018.
The matter is remanded back to the trial Court for considering the imposition of sentence upon the respondent de novo - petition allowed by way of remand.
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2021 (11) TMI 987
Dishonor of Cheque - insufficiency of funds - acquittal of the accused - rebuttal of presumption - preponderance of probability - legally enforceable debt or not - defence case is that cheque was issued as a security to another transaction - HELD THAT:- It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case was successful in discharging the burden by cross-examining PW1, by examining DW1 and producing Exts.D1 to D4 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Therefore, the presumption under Sections 118(a) and 138 of the NI Act is over. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable.
In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal.
Appeal dismissed.
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2021 (11) TMI 986
Dishonor of Cheque - Signatory of cheque or not - sections 138 and 142 of Negotiable Instruments Act - HELD THAT:- Admittedly, the cheque has been issued in the joint account maintained by both A1 and A2. But, the cheque has been signed only by A1/husband and the petitioner/A2 is not a signatory to the cheque. In the said circumstances, the petitioner cannot made liable for the prosecution, and A1, who was the drawer of the cheque alone is liable to be prosecuted under Section 138 of Negotiable Instruments Act. As the petitioner is not a drawer of the cheque, no prosecution can be initiated against her.
This Criminal Original Petition is allowed - the case against the petitioner/A2 in STC No. 5975 of 2014 on the file of the Judicial Magistrate, Sathyamangalam, is quashed. Since the case is pending from the year 2014, the trial Court is directed to proceed with the trial against A1 and dispose the same within a period of three months from the date of receipt of a copy of this order.
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2021 (11) TMI 985
Dishonor of Cheque - seeking exemption of compounding fee on the ground that due to poor financial condition, petitioner could not pay the amount well in time and now he is not in a position to pay the compounding fee - HELD THAT:- Instead of 15% of the cheque amount, petitioner/accused is directed to deposit ₹ 5,000/- as compounding fee with the H.P. State Legal Services Authority, Shimla within four weeks from today - After depositing compounding fee/cost, petitioner shall place a copy of receipt of deposit of compounding fee on record of this petition. In case of default in depositing compounding fee/cost with the H.P. State Legal Service Authority, Shimla within eight weeks from today, the judgments of conviction and sentence shall automatically revive.
As an amount of ₹ 1,76,000/- has been deposited by petitioner in the Registry of this court, therefore, Registry of this Court is directed to release the said amount, along with interest, if any, to the respondent No. 1/complainant Birendra Bahadur Singh, by remitting the same in his bank account to be supplied by the respondent in person or through his counsel ₹ 44,000/- has been deposited by the petitioner in the Trial Court, therefore, the Trial Court is also directed to release the amount of compensation, deposited by the petitioner/accused in favour of respondent No. 1/complainant Birendra Bahadur Singh, along with interest, if any accrued thereon, without issuing notice to the accused-petitioner (Inderjeet Sedha) by remitting the same in his bank account, details whereof shall be furnished by him either in person or through counsel at the time of production of copy of this order in the trial Court.
Petition disposed off.
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2021 (11) TMI 984
Dishonor of Cheque - accused failed to rebut the presumption available to the complainant - legally recoverable debt or not - denial of all incriminatory materials - Section 138 of the Negotiable Instruments Act - HELD THAT:- In the case on hand, issuance of cheque and the signature of the accused on the cheque stands proved by placing necessary oral and documentary evidence on record. Admittedly, there was a business transaction between the accused and the complainant in respect of purchase of a LGV Tata vehicle bearing No. KA-20/7567. Ex. P-8 is the Account statement produced by the complainant which shows that accused was due in a sum of ₹ 1,50,000/- and the cheque came to be issued towards the legally recoverable debt i.e., the amount due by the accused to the complainant as per Ex. P-8.
The cheque on presentation, admittedly, was dishonoured and thereafter, legal notice came to be issued and there is no compliance of callings of notice. Therefore, all ingredients to attract offence under Section 138 of the Negotiable Instruments Act stands established by placing necessary oral and documentary evidence on record. No doubt, the accused got herself examined as DW-1, wherein she tried to rebut the presumption available to the complainant under the provisions of section 118 and 139 of the Negotiable Instruments Act, but the evidence adduced by the accused was not sufficient to rebut the said presumption and therefore, the learned Trial Magistrate recorded an order of conviction for the accused for the offence punishable under section 138 of the Negotiable Instruments Act, and the learned Judge in the first appellate court rightly re-appreciated the material evidence on record and confirmed the finding recorded by the learned Trial Magistrate.
On perusal of the cross examination of PW1, it is seen that there is no proper proof of challenging the entries in Ex. P-8 which is the accounts statement. Admittedly, the defence taken by the accused is that the cheque is issued for the purpose of security was not at all established and accordingly, this court is of the considered opinion and both the courts have passed an order of conviction based on the sound and logical reasons and therefore, it does not suffer from any legal infirmity or perversity.
Criminal Revision Petition is dismissed.
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2021 (11) TMI 983
Dishonor of Cheque - insufficiency of funds - blank cheque misused by complainant - Discharge of lawful liability - section 138 of NI Act - HELD THAT:- This Court finds no force in the submission of learned counsel representing the petitioner that Courts below have failed to appreciate the evidence in its right perspective, rather this Court is convinced and satisfied that complainant successfully proved on record that he advanced friendly loan of ₹ 6,00,000/- to the accused, who with a view to discharge her lawful liability, issued cheque Ex.CW1/B, amounting to ₹ 6,00,000/-, but same was dishonoured on account of insufficient funds in the bank account of the accused. Interestingly, in the case at hand, there is no denial, if any, on the part of the accused with regard to issuance of cheque, rather she has categorically stated that she had borrowed sum of ₹ 1,00,000/- only and in lieu thereof, had given blank cheque to the complainant, which was subsequently misused by the complainant.
Accused in her statement recorded under Section 313 Cr.P.C., nowhere denied the factum with regard to issuance of cheque, but claimed that same was issued as a security. Since, there is no dispute with regard to issuance of cheque in question as well as signatures thereupon of the accused, there is presumption under Sections 118 and 139 of the Act that cheque was issued by the accused towards discharge of her lawful liability. No doubt, aforesaid presumption is rebuttal, but for that purpose, accused was under obligation to raise probable defence, which could be either raised by leading positive evidence or by referring to the material adduced on record by the complainant - in the instant case, accused has not been able to raise any probable defence, rather she has simply stated that she had handed over blank cheque. Once, she has admitted factum with regard to borrowing sum of ₹ 1,00,000/-, it is not understood that where was the occasion for her to issue blank cheque, as has been claimed by her.
Entire evidence led on record by the respective parties, clearly indicates that accused had issued cheque Ex.CW1/B to the complainant towards discharge of her lawful liability. Though, accused claimed before the court below that she had repaid the amount and has no liability towards the complainant, but to that effect no cogent and convincing evidence ever came to be led on record - Leaving everything aside, factum with regard to issuance of cheque and signature thereupon stands duly admitted by the accused and as such, there is presumption in favour of the complainant that he had received cheque in question issued towards lawful liability.
In the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power.
This Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld - the present revision petition is dismissed.
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2021 (11) TMI 982
Dishonor of Cheque - insufficiency of funds - inconsistency as to the name of complainant in the documents of the complaint - HELD THAT:- In the case on hand, the learned Judicial Magistrate of First Class, Vikarabad, having considered the material available on record, taken cognizance for the offence punishable under Section 138 of the NI Act. Summons were issued to the accused and he is making appearance, prima facie case is made out disclosing the ingredients of the offence under Section 138 of the NI Act against the petitioner/accused. Hence, at this stage, this Court cannot quash the proceedings in C.C.No.403 of 2013.
The criminal petition is dismissed as devoid of merit.
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2021 (11) TMI 981
Legal right of the petitioner on account of the Taxes being shared and borne by the petitioner on post enactment goods and Service Tax Act, 2017 - Infringement of Goods and Service Tax Act, 2017 - restitution of benefit of GST to the petitioner along with interest within a stipulated period in respect of work in which the estimate was prepared under the VAT law - direction to opposite party not to prepare fresh schedule of rates considering rapidly change of rate and price and calculate the differential amount of GST on the contract in which estimate was prepared under VAT - HELD THAT:- On perusal of the judgment delivered by this Court in M/S. HARISH CHANDRA MAJHI VERSUS STATE OF ODISHA & OTHERS [2021 (6) TMI 381 - ORISSA HIGH COURT], the Court finds that the Court has dealt with a large number of grounds which are more or less similar to the points urged in the present petition. The Court is not satisfied that any new ground has been made out requiring the Court to revisit its judgment in Harish Chandra Majhi. Consequently, the Court is not inclined to interfere in the impugned petition.
Petition dismissed.
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2021 (11) TMI 980
Seeking release of monetary compensation/reward - Release of lorries and trucks - HELD THAT:- The writ petition cannot be treated to be a frivolous litigation. The issue as to whether the appellant can be recognized as an informant or not under the relevant circulars issued by the Central Board of Excise & Customs (C.B.E.C.), what is required to be first seen is whether there has been any illegal imports of the betel nuts from the neighbouring countries into the State of West Bengal.
The court can take judicial notice of the fact that the Customs Department and the Central Excise Department very often initiate action based on special intelligence. The show cause notice also states that information was gathered by specific intelligence either by the DRI or the DGFT or other investigating agencies. Therefore, there is no requirement for the Customs and Excise to disclose the source of information based on which investigation was undertaken. Therefore, the court fails to understand as to why effective action was not taken by the Customs Department pursuant to the representations made by the appellant.
The writ petition needs to be heard and decided on merits for which affidavits are required from the concerned respondent viz. Customs Authorities. That apart, the appellant is required to implead the SGST authority as well as the State Government as party respondent so that the matter can be examined from the angle as to whether the SGST authority would have jurisdiction or domain over the said goods and whether they would be entitled to levy tax and penalty.
The writ petition is restored to the file and number of the learned Single Bench to be heard and decided on merits after affidavits are filed by the respondents - The appeal is, thus, allowed. The order passed in the writ petition is set aside.
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2021 (11) TMI 979
Validity of summons issued - primary contention of learned counsel is that in response to the first summon served, the petitioner had submitted that it would require two weeks to appear with all the material but without giving any breathing time, further summons were being issued - HELD THAT:- This petition is disposed of with a direction that in case the petitioner appears before the officer concerned on 29.11.2021, he may file reply and make submissions both on law and merits and the officer concerned would decide the same by passing a speaking order, in accordance with law.
Application disposed off.
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2021 (11) TMI 978
Seeking grant of anticipatory bail - lower amount of GST paid to Government - manipulation of GST returns - forged challans and returns - HELD THAT:- The allegations in the FIR are primarily against Harish Kumar Rampal, who was the Chartered Accountant and it was his duty to file the requisite GST returns and also the fact that the petitioner is only involved in the case as there is a transfer of some amount and also the fact that as per the petitioner, the amount of ₹ 21 lakhs out of the said ₹ 31 lakhs has already been returned to Pooja Sablok and the balance amount of ₹ 10 lakhs has already been deposited with the trial Court, regarding which there is no objection in case the said amount is deposited with the GST Authorities and also the fact that the petitioner has joined the investigation, the present petition for grant of anticipatory bail is allowed and interim order dated 12.08.2021 is made absolute.
It is however, clarified that the payment of the amount of ₹ 10 lakhs is without prejudice to the rights of the petitioner as well as the complainant, as by virtue of the said payment, neither the petitioner has admitted her guilt in the matter nor the complainant has fully and finally settled the matter with the petitioner so as to entitle her to file petition for quashing of the FIR solely on the basis of compromise.
Application disposed off.
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2021 (11) TMI 977
Maintainability of petition - availability of alternative remedy of appeal - prayer was made that since the time for filing the statutory appeal is going to expire by the end of the month, since the petitioner was bonafide in approaching this Court, it may be permitted to prefer the appeal by 10.12.2021 - section 107 of CGST Act - HELD THAT:- This Writ Petition is disposed of with liberty to move an appeal under Section 107 of the Act. If the same is done by 10.12.2021, in accordance with law, the Appellate Authority shall consider the matter on merits after giving opportunity of hearing to the petitioner, and pass orders thereupon expeditiously.
The original certified copy of the order be returned by Registry to learned counsel for the petitioner under due acknowledgement of the advocate on record for the petitioner by 26.11.2021 - Petition disposed off.
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