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Showing 1 to 20 of 1410 Records
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2023 (4) TMI 1412
Disallowance of deduction claimed being delayed payment of Employees Contribution to Provident Fund (PF) and Employees State Insurance (ESI) - HELD THAT:- We unable to accept such contention of the assessee in view of the binding ratio laid down in case of Checkmate Services P. Ltd. [2022 (10) TMI 617 - SUPREME COURT] wherein, it has been held that unless employees contribution to PF and ESI are deposited within the due date prescribed under the relevant statute governing such payments, the amount in question has to be treated as income of the assessee in terms of section 36(1)(va) read with section 2(24)(x) of the Act. Therefore, the disallowance has to be upheld. In so far as the contention of learned counsel for the assessee that such adjustment is not contemplated under Section 143(1)(a) (iv), we are unable to accept the contention in view of the decision of Savleen Kour [2023 (2) TMI 51 - ITAT DELHI]
Contention of the assessee that the deduction is otherwise allowable under Section 37(1) - No merit in such submission. In case of BBG Metal Syndicate Pvt. Ltd. [2022 (11) TMI 1428 - ITAT CUTTACK] while considering such submission has not expressed any opinion and has simply restored the issue to the file of the Assessing Officer. Therefore, the decision cited cannot be regarded to be a precedent for laying down the ratio that the payment made can be allowed as deduction under Section 37(1) of the Act. In so far as, learned counsel’s contention that the due date should be calculated with reference to the due date for payment of salary, direct the AO to factually verify the date of payment of employees contribution to PF and ESI and in case they are found to have been paid within the due date prescribed under the PF and ESI Act or within the grace period, if any, under these Acts, then, deduction can be allowed
Appeal is allowed for statistical purposes.
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2023 (4) TMI 1411
Bogus share transactions - shares were purchased from a broker who was penalized by SEBI for malpractices with mala fide intention - denial of LTCG - CIT(A) deleted addition - HELD THAT:- The assessee has submitted all details and documentary evidences in support of purchase, sales and holding of impugned shares. The AO has not found any infirmity in those documents. The shares were purchased and sold online through recognized stock exchange. The purchase price was paid through A/c payee cheques and the sale consideration was also received through A/c payee cheques. Immediately after purchase, the shares were credited to assessee’s demat A/c and they were held therein for a period as long as 4 years before sale.
It is an undisputed fact that the assessee has sold only part of the holding and even after such sale, continued to hold remaining quantity which were carried to subsequent year. The AO has not identified any iota of negativity in these factors. Regarding the penal action taken by SEBI, we note that the said action was taken against Shyam through whom the assessee purchased shares in the year 2004-05. Thereafter, Shyam does not have any role. As both sale and purchase are very much established/accepted. At the cost of repetition, we may also add that during entire period of 4 years from purchase to sale, the assessee had held the impugned shares in Demat A/c with Indusind Bank. Thus, no adverse conclusion can be taken on the basis of mere imposition of penalty by SEBI on Shyam who had no role except purchase of shares in the year 2004-05.
We finally conclude that the Ld. CIT(A) was very much justified in deleting the addition made by AO. We approve his action. The revenue fails in this appeal.
Before parting, we would like to make a specific note that there is a plethora of decisions by Hon’ble courts/benches of ITAT on what is called “penny stock” in favour of assessee as well as revenue. But every case has its own set of facts/evidences and there cannot be a single view in all cases. The present case has its own set of facts/evidences and it cannot be used as indicating something universal applicable to every situation. Appeal of Revenue is dismissed.
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2023 (4) TMI 1410
Validity of assessment order passed u/s 147 and Section 144 r.w.s. 144B - HELD THAT:- Although this is a case, where the assessment order has already been passed, we are presently inclined to issue notice in the writ petition, as we are prima facie satisfied, that this is not a case in which provisions of Section 144 of the Act ought to have been triggered.
The petitioner had filed his returns, and had also responded to the notice issued under Section 142(1) of the Act. In this particular case, no notice under Section 143(2) has been issued to the petitioner.
What is not clear upon a perusal of the impugned assessment order, is as to why the AO has taken recourse to Section 144 of the Act. As noticed above, although a reply was filed vis-a-vis the notice issued under Section 148A(b) of the Act, the AO did not take cognizance of the same while passing the order under Section 148A(d) of the Act.
Accordingly, issue notice. List the matter on 13.10.2023.
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2023 (4) TMI 1409
Seeking permission to withdraw the present special leave petition - Seeking grant of Regular Bail - Money Laundering - scheduled offence - proceeds of crime - illegal mining activities and ferrying through ships/ferry in Sahebganj - income from legitimate source or not - it was held by High Court that 'With regard to the health condition of the petitioner the jail authorities are directed to provide medical facilities and treatment as per the Jail Manual. However, there does not exist any special ground for grant of bail on health grounds at this stage.'
HELD THAT:- The special leave petition is dismissed as withdrawn.
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2023 (4) TMI 1408
Interpretation of statute - Section 17(1)(g) of the Registration Act as amended by the Tamil Nadu Amendment Act, 2012, and the proviso to Section 49 of the Registration Act - whether an unregistered Agreement to Sell, which is compulsorily registrable under the Tamil Nadu Amendment Act, 2012, can be received as evidence in a suit for specific performance? - HELD THAT:- As per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document.
At this stage, the primary statement of objects and reasons to the Tamil Nadu Amendment Act, 2012, is also required to be referred to and considered. The primary statement of objects and reasons seem to suggest that amendment has been introduced by the State of Tamil Nadu bearing in mind the loss to the exchequer as public were executing the documents relating to sale of immovable property etc. on white paper or on stamp paper of nominal value.
At this stage, it is required to be noted that the proviso to Section 49 came to be inserted vide Act No. 21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable.
As per proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act. It is not the case on behalf of either of the parties that the document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act.
Conclusion - The High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered document in question namely unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49.
PPetition dismissed.
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2023 (4) TMI 1407
Application for grant of interim relief - seeking stay execution and operation of the letterof Deputy Director Enforcement Directorate, Nagpur and undated notice sent by Assistant Director to the tenants of Empress Mall, Nagpur for payment of lease amount to Deputy Director, Enforcement, Kolkata - Entitlement to the benefit under Section 32 A of the Code.
Application for grant of interim relief - HELD THAT:- The notice was sent to the shopkeepers for deposit of lease amount to the respondents. An application was earlier moved by the appellant before the NCLT, which was dismissed by a detailed order. The appeal thereupon was filed but has been dismissed by NCLAT by its order dated 3rd January, 2022. Therein similar prayer was made by the appellant. The application was dismissed after recording finding that Resolution Plan has not been approved by the Adjudicating Authority, under Section 31 of the Code of 2016. In view of the above, the claim of the appellant was not found tenable in reference to Section 32A of the Code of 2016. The appellant suppressed aforesaid fact while moving application before this Tribunal in reference to the same property and almost for similar relief. The appellant has thus not approached this Tribunal with clean hands while maintaining the application. It is when the orders of NCLT and NCLAT are prior in time to the application for interim relief. The conduct of the appellant itself is sufficient to deny interim relief in reference to it.
Entitlement to the benefit under Section 32 A of the Code - HELD THAT:- The prayer in reference to Section 31 and 32 A of the Code of 2016 was made even before the NCLT and NCLAT. It was not accepted finding that Insolvency Resolution has not been approved as yet by the Adjudicating Authority under Section 31 of the Code of 2016 rather same is still pending. The appellant was thus not found entitled to the benefit under Section 32 A of the Code of 2016.
While pursuing the case before the High Court of Bombay at Nagpur, the fact regarding possession of the property by the ED on 10.11.2021 was not disclosed and brought to the notice of the Court which is reflected from the order. The information about the possession could not have been furnished by the learned ASG on the first date of hearing in absence of necessary instructions at that stage - the prayer of the appellant for grant of interim order ignoring the possession of the property with the ED cannot be accepted and no interim order against it.
Conclusion - i) The appellant's failure to disclose prior judgments and possession status constituted a lack of clean hands, precluding the grant of interim relief. ii) Section 32A of the Insolvency and Bankruptcy Code, 2016, was inapplicable as the resolution plan had not been approved by the Adjudicating Authority.
The application for interim relief dismissed and it is directed that the Mall property be maintained by the respondents - Let the appeal be posted now on16.10.2023 for further proceedings.
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2023 (4) TMI 1406
CIT(A) entertaining the new claim in the reassessment proceedings by holding that first proviso to section 143(3) is applicable - Admission of claim of the assessee u/s 10(23C)(vi) - HELD THAT:- As seen from the assessment order passed u/s 143(3) of the Act, the assessee not at all claimed the deduction u/s 10(23C) of the Act by showing that the assessee has filed the return u/s 139(4C) of the Act, however, by way of additional ground, the same has been claimed by assessee before ld. CIT(A).
At this point, it is pertinent to mention that reopening of an assessment u/s 147 r.w.s.148 would be taken up if the AO has reason to believe that income has escaped assessment. Then AO would assess or reassess such income as also any other income chargeable to tax which comes to his notice subsequently during the proceedings u/s 147 of the Act.
The emphasis is on the words “such income” which means income which has escaped assessment. The provisions of section 147 of the Act leaves no scope for the assessee to make an additional claim in the return filed in response to notice u/s 148 of the Act, more so, by way of additional ground before CIT(A). There is no jurisdiction to AO/CIT(A) to entertain such new claim, which is prejudicial to the interest of revenue.
The ratio of the above decision in the case of Sun Engineering Works Pvt. Ltd. [1992 (9) TMI 1 - SUPREME COURT] is that once an assessment is validly reopened, only the previous assessment is set aside and not the original assessment proceedings particularly if it has reached finality. In the reassessment proceedings, it is not open to an assessee to seek a review of the concluded item unconnected with escapement of income. Being so, in our opinion the ld. CIT(A) is not justified in entertaining the new claim in the reassessment proceedings by holding that first proviso to section 143(3) of the Act is applicable and he exceeded his jurisdiction in admitting the additional grounds of appeal.
In our opinion, the right to file appeal to be given liberal construction since they are remedial in nature. A right to appeal will not be restricted or denied unless such construction is unavoidable as per the judgement in the case of CIT v. Bengal Card Board Industries & Printers (P) Ltd. [1988 (6) TMI 7 - CALCUTTA HIGH COURT]
Accordingly, we vacate the above findings of ld. CIT(A) and restore the entire matter to the file of ld. CIT(A) to decide the grounds relating to the merit of the additions made by AO.
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2023 (4) TMI 1405
Unexplained commission income - unexplained income u/s. 69A which is liable to be taxed u/s. 115BBE - assessee(s) preferred appeal before CIT(A), challenging the action of the AO stating that the search was carried out on the last day of financial year - As argued by assessee no opportunity was granted to explain commission receipts - HELD THAT:- First fold of contention that no opportunity was granted by CIT(A), we fail to find any merit as sufficient opportunity was given by both the lower authorities.
AO treating the income from other source as unexplained income u/s. 69A and proceeding ahead to tax the alleged income u/s. 115BBE - There is a complete silence on this issue. Only by saying that the alleged unaccounted cash is commission income will not serve the purpose in this case. The assessee in order to not to fall under provisions of section 69A has to explain the source of said income to the satisfaction of the Assessing Officer, but the assessee has not filed any detail, what to talk about the satisfaction of the AO.
In our considered view and under the given facts and circumstances of the case, the alleged income of Rs. 85 lakhs i.e. Rs. 50 lakhs in the hands of Shri. Sumermal Kanthilal Jain and Rs. 35 lakhs in the hands of Shri. Goutham Chand Jain, shown under the head income from other source has rightly being treated by both lower authorities as unexplained money u/s. 69A. Since, we have held that the alleged income is an income u/s. 69A of the Act, then automatically provisions of section 115BBE of the Act will be invoked and therefore, grounds raised on this issue are decided against the assessee.
Cash belongs to the income tax assessee family members living in the same residence as a joint family - As we fail to find any merit in this ground. The situation of the assessee is like sailing on two boats which is always very risky and thus, never advisable. Though, during the course of survey, assessee has stated both the reasons but then the assessee(s) should have stick to one reason. If they had taken the route that the cash belongs to all the family members, then those details has to be filed in the respective income tax returns of all those assessees. However, it seems that assessee(s) may have thought that it is not advisable to include all other family members in this search proceedings, on this issue, therefore Goutham Chand Jain along with Shri. Kanthilal Jain unanimously decided to offer it as undisclosed income at Rs. 35 lakhs and Rs. 50 lakhs respectively. Once they stated on oath during the search proceedings, they duly complied it and offered it as income from other source in their return of income and paid taxes and have expressly conveyed as their own income under the head income from other source, the alternate plea taken at this stage cannot be entertained. We therefore, fail to find any merit in the third fold of contention raised by the assessee(s) in the instant appeals.
CIT(A) has rightly held the income as unexplained income u/s. 69A of the Act in the hands of assessee(s) namely Shri. Gautham Chand Jain and Shri. Sumermal Kanthilal Jain, and has rightly sustained the action of ld. AO invoking the provisions of section 115BBE - Decided against assessee.
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2023 (4) TMI 1404
Penalty u/s 271(1)(c) - Commission income in business of accommodation entries - whether the assessee has concealed particulars of income or has furnished inaccurate particulars of such income during assessment proceedings? - HELD THAT:- Bare perusal of the notice issued in this case by the AO goes to prove that the AO at the time of issuing the notice was not satisfied if he was initiating the penalty against the assessee for concealing particulars of his income or for furnishing inaccurate particulars of such income.
This issue has been decided in case of Md. Farhan A Sheikh [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] and held that penalty u/s 271(1)(c) is not leviable when invalid notice as in the instant case has been issued to the assessee.
Undisputedly entire addition in this case was made/confirmed by the AO as well as the CIT (A) on the basis of estimation and guess work on the alleged bogus entry provided by the assessee during the year under consideration initially @ 100% by the AO, which was reduced by the Ld. CIT (A) to 2% of the turnover, which was further reduced by the Tribunal to 0.15% of total bogus entries provided.
Thus, we are of the considered view that when the entire addition has been made on the basis of estimation, penalty levied by the AO and sustained by the CIT (A) is not sustainable.
When entire addition in this case is on estimation basis and at no point of time Revenue Authorities have reached the specific conclusion that the assessee has concealed the particulars of income or has furnished inaccurate particulars of income rather made the addition on the basis of information received from Sales Tax Department without conducting any independent enquiry as to the alleged bogus purchases, the penalty levied by the AO and confirmed by the CIT (A) is not sustainable in the eyes of law. Decided in favour of assessee.
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2023 (4) TMI 1403
Penalty u/s. 43 of Black Money Act - non-disclosure of a foreign asset in Schedule-FA of the Income Tax Return - CIT(A) deleted addition -HELD THAT:- As in Schedule – EI, wherein the assessee was required to declare exempt income, the assessee has duly reflected the maturity value of the insurance policy. The same amount has been disclosed by the assessee in the Statement of Income annexed to the return of income.
As undisputed fact that the assessee has paid 30% taxes on fair market value of foreign asset along with 30% penalty, aggregating to 60% of the total value of the foreign asset under One Time Compliance Scheme of the Act.
CIT (A) deleted the penalty levied u/s. 43 of the Act by Assessing Officer by placing reliance on the decision of Tribunal in the case of Leena Gandhi Tiwari [2022 (6) TMI 1191 - ITAT MUMBAI]
As undisputed fact that by the end of F.Y. 2015-16 the foreign asset ceases to exists as the assessee surrendered the said policy and the maturity amount of policy was duly reflected in Income Tax Return. Bonafide mistake in not disclosing foreign asset in Schedule –FA of the Income Tax Return is a reasonable cause for deleting penalty in the given circumstances. Furnishing of inaccurate particulars about asset located outside India cannot be imputed as the assessee had already made declaration under the Act the same was accepted and maturity amount of Life Insurance Policy has been disclosed in Income Tax Return. Appeal by the Revenue is dismissed.
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2023 (4) TMI 1402
Assessment u/s 153A - incriminating material was found to justify the addition or not? - additions made u/s 68 - HELD THAT:- DR has failed to substantiate any incriminating material found during the course of search which could establish non-genuineness of the unsecured loan. As far as his arguments of falsity of the books of accounts is concerned, we are of the opinion that any entry in the books of accounts could be false as a result of any incriminating material discovered during the search.
So, falsity of books of account in recording the entries of unsecured loan may be as a result of any incriminating material found and but those entries are not incriminating material in itself unless established to be false by way of other incriminating material.
No infirmity in the same. Accordingly, we uphold the same. The grounds of appeal of the Revenue are accordingly dismissed.
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2023 (4) TMI 1401
Addition of Long term capital gain arising on sale of shares u/s 68 - HELD THAT:- AO has simply relied upon the report of the investigation department and held that the long term capital gains declared by the assessee are not genuine. No other material was brought on record by the AO to prove that the assessee has indeed availed only accommodation entries.
We noticed that the assessee has furnished all documents relating to purchase and sale of securities. The shares have entered and exited his demat account. The purchase and sale transactions have been routed through the bank accounts of the assessee.
All these documentary evidences produced by the assessee have not been disproved. We also notice that the assessee has asked for opportunity of cross examination of the parties, whose statements were relied upon by the AO, but same was not provided.
Hence the AO could not have placed reliance on those statements. On the conspectus of the matter, we are of the view that the decision in the above said case of Shyam R Pawar [2014 (12) TMI 977 - BOMBAY HIGH COURT] and Ziauddin A Siddique [2022 (3) TMI 1437 - BOMBAY HIGH COURT] are squarely applicable to the facts of the present case. Accordingly, we set the order passed by CIT(A) on the grounds raised on merits and direct the AO to delete the addition of long term capital gains. Appeal filed by the assessee is allowed.
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2023 (4) TMI 1400
Addition u/s 68 - long-term capital gain as a bogus accommodation entry - onus to prove - HELD THAT:- Observations and findings of the AO in the assessment order is based on generalized statement of third party recorded behind the back of the assessee, recorded in some other case and not in the case of assessee, cannot constitute tangible evidence to lead to the conclusion that transaction of sale of share shown by the assessee is bogus being an accommodation entry.
AO has though referred to the statement of these two persons who have operated as entry providers but there is no reference in those statements about the assessee being one of the beneficiary, nor any material has been brought on record, otherwise also by the AO, to prove the assessee being beneficiary through them.
There is no doubt that if the assessee has claimed LTCG from purchase and sale of shares, as exempt u/s 10(38) of I.T. Act, 1961, the primary onus is on the assessee to substantiate his claim by producing supporting evidences.
On perusal of the details so submitted by the ld. AR of the assessee, it is seen by me that the assessee has furnished various documentary evidences in support of purchase and subsequent sale of the shares leading to earning of LTCG by the assessee, as mentioned in brief just herein above and mentioned in detail in the submission of the ld. AR.
The assessee has purchased 12500 shares for Rs. 1,87,500/- and made payment through banking channel which stood debited in the bank account of the assessee. These shares were dematerialized on 26.06.2013 [12000 shares] and 26.08.2013 [500 shares] and deposited in the DMAT account maintained by Alankit Assignment Ltd., the independent third party.Thus it is clear that 12500 shares were purchased by the assessee and same is quite evident not only from the books on accounts of the assessee but also D-MAT account of the assessee maintained by independent third party, duly recognized by the concerned authorities.
As coming to the sale of share, it is seen that assessee has sold these shares through online transaction via recognized stock broker M/s KIFS Securities Ltd. Transaction of sale is supported by contract notes and as per the contract notes, these shares were sold on three different dates. . As the sale of shares have been made through online system on stock exchange, obviously same has been made at the prevailing market rate of the shares. Accordingly, the sale rate so shown by the assessee cannot be doubted. Moreover, security transaction tax has also been deducted and paid and the assessee has received the net sale consideration through banking channels. These evidences leave no doubt about the sale of shares made by the assessee at the prevailing market rate.
Thus, claim of long term capital gain of exemption u/s 10(38) of I.T. Act do not suffer from infirmities and cannot be held as bogus and accordingly addition so made by the AO and confirmed by the CIT(A) is hereby deleted. Appeal of the assessee is allowed.
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2023 (4) TMI 1399
Seeking grant of bail - facilitating the offence of murder of the two leaders - allegation is that 45 Accused persons who belonged to the Communist Party of India (Maoist), a terrorist organisation notified in the first Schedule of the UAPA, stopped the convoy of vehicles of the leaders - Appellants planted landmines near the village where the programme was to be held - HELD THAT:- Section 27 of the Evidence Act is an exception to the general Rule Under Section 25 that a confession made by an Accused to a police officer is not admissible in evidence. The first condition for the applicability of Section 27 is that the information given by the Accused must lead to the discovery of the fact, which is the direct outcome of such information. Only such portion of the information given as is distinctly connected with the said discovery is admissible against the Accused - There was no discovery of any fact as a result of the information supplied by Accused No. 46. The same is the case with the other allegation that Accused No. 46 showed a Xerox shop where Accused No. 47 and one Kiran were allegedly standing on 23rd September 2018. Therefore, the statements of Accused No. 46 that he would show the medical shop and the Xerox shop may not be, prima facie, admissible Under Section 27 of the Evidence Act. Moreover, as noted in the order of the High Court granting bail to Accused No. 84, the said Kiran, who was allegedly standing with Accused No. 47 near the Xerox shop on 23rd September 2018 was already in custody from 18th September 2018 and he continued to be in custody even on 23rd September 2018.
There was a recovery of landmine at the instance of Accused No. 46. It must be noted here that it is not the case of the prosecution that the recovery of landmine was at the instance of the Accused No. 47. The recovery Panchama (Annexure A-1) to IA No. 74099 of 2022 is styled as "Mediators' Report and Seizure Panchnama". It records that at about 4 pm on 13th October 2018, the mediators were present at Livitiputtu village with ASP Amitabh for preparing the Mediators' Report and Seizure Panchanama - Going by the "Mediators' Report and Seizure Panchnama", the Appellants gave confessional statements immediately after the police caught hold of them even before their arrest was recorded. Therefore, prima facie, it creates a doubt about the genuineness of the statements. The material portion of the "Mediators' Report and Seizure Panchnama" appears after the confessional statement of the Accused No. 46.
Taking the material against the Appellants as it is and without considering the defence of the Appellants, it is unable to form an opinion that there are reasonable grounds for believing that the accusations against the Appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to Sub-section (5) of Section 43D will not apply in this case. It is made clear that the findings recorded in this judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to Sub-section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations.
The Appellants are in custody for four and half years. The charge has not been framed and the prosecution proposes to examine more than 140 witnesses. Some of the Accused are absconding. Thus, there is no possibility of the trial commencing in the near future.
Appeal allowed.
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2023 (4) TMI 1398
Seeking withdrawal of appeal - Constitutional validity of levy of service tax on service provided or to be provided to any person by a restaurant having the facility of airconditioning in any part of the establishment - Sub clause (zzzzv) of clause (105) of Section 65 - power of state government to levy Sales Tax / Value Added Tax (VAT) - Subclause (f) of Clause (29A) of Article 366 - it was held by High Court that 'Levy of service tax on service provided or to be provided to any person by a restaurant having the facility of air-conditioning is not unconstitutional.'
HELD THAT:- The appeal stands dismissed as withdrawn.
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2023 (4) TMI 1397
Seeking grant of bail - Siphoning of huge public money availed by way of financial assistance from various banks in the name of some shell Companies and puppet Companies - offence punishable under Section 447 of the Companies Act, 2013 - HELD THAT:- This court feels that it is needless to once again harp on the same and it would be suffice to ensure as to whether there is any change of circumstances warranting this court to consider the present bail petition.
The main change of circumstance pleaded by the learned Senior Counsel for grant of bail is filing of a private complaint by the respondent on 9.9.2022 and cognizance having been taken by the court below. True that, as pointed out by the learned Senior Counsel appearing for the petitioner that bail has been granted in respect of the offences punishable under the Prevention of Money Laundering Act, 2002 by the Apex Court in Kiran Prakash Kulkarni vs. Enforcement Directorate and Another [2019 (4) TMI 1973 - SUPREME COURT] observing that charge sheet has been filed and it is true that Section 45(1) of the Prevention of Money Laundering Act 2002, which imposes twin conditions is akin to Section 212(6) of the Companies Act.
In the case on hand, it appears that the investigation so far done by the respondent reveals that the petitioner had indulged in fraud as explained under Section 447 of the Companies Act and the statements recorded from the witnesses so far points out the guilt of the petitioner. According to the respondent the case, being one with high stake, they have widened the investigation and there is every likelihood of bringing home the guilt of the petitioner and in the event of the petitioner being released on bail, he would tamper with the evidence and shatter the entire case of the respondent.
This court has, recently, declined to grant bail, considering the fact that it is a case of economic offence of grave magnitude affecting the society and having arrived at a conclusion that the petitioner has not satisfied the twin conditions imposed under Section 212(6) of the Companies Act for grant of bail for the offence punishable under Section 447 of the Companies Act and also holding that it is highly premature to grant bail to the petitioner.
Conclusion - In cases of serious economic offenses, bail should not be granted unless there is a clear change in circumstances and the accused satisfies the twin conditions under Section 212(6) of the Companies Act.
This court finds that the petitioner is not entitled to grant of bail at this stage. Accordingly, the Criminal Original Petition stands dismissed.
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2023 (4) TMI 1396
Compensation not paid to the majority of the land holdings -Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement - award announced but not paid
Whether the provisions of The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 would apply to the cases where CALA had announced the award and the amount deposited by the acquiring agencies with the competent authority prior to 31.12.2014, but the compensation was not paid to majority of the acquired land holdings?
HELD THAT:- It is admitted case that payment to majority of land holdings under acquisition was not made as on 31.12.2014.
The provisions of the 2013 Act or determination of compensation shall apply to acquisition in question. The reliance on the decision of Rajasthan High Court in Gopa Ram's case [2018 (1) TMI 1657 - RAJASTHAN HIGH COURT] by NHAI is of no avail. In that case, the admitted position was that the land owners had received compensation prior to 31.12.2014. The issue that deposit of compensation would tantamount to the payment made to land owners was not involved.
The issue raised that compensation is to be determined only as per factors mentioned in Section 3-G(7) of the 1956 Act is no longer res integra. The Supreme Court in National Highways Authority of India v. Sri P. Nagaraju @ Chelluvaish and another, [2022 (7) TMI 1413 - SUPREME COURT] held that Section 3-G (7) of the 1956 Act provides basic parameters of determination of compensation and after 2013 Act was made applicable to acquisition under the 1956 Act, the factors provided under Sections 26 and 28 of the 2013 Act will also apply.
Thus, beneficial provisions of the 2013 Act would also be applicable to the acquisition in question.
From the perusal of the award passed by CALA and the arbitral award, it is evident that no reasons are recorded. In award of CALA, there is only a passing reference that reports of Tehsildar and Naib Tehsildar were called with regard to potential of the land. Reliance was placed upon the prices fixed by District Price Fixation committee for determination of compensation. From the reading of the arbitral award, it cannot be even made out as to whether the compensation was determined as per the provisions of the 1956 Act, 1894 Act or 2013 Act - It would not be appropriate for this Court under Section 37 of the 1996 Act to comment further on the determination of compensation. Suffice to say, the minimum requirement was that the arbitrator should have dealt with the factors to be considered and given reasons either for applying the said factors or for not adopting them. The non-speaking award is patently illegal being violative of Sections 28(1)(a) and 31(3) of the 1996 Act.
Conclusion - i) The beneficial provisions of the 2013 Act would also be applicable to the acquisition in question. ii) Non-recording of reasons in consonance with Section 31(3) of the 1996 Act results in violation of Section 28(1)(a) of the 1996 Act, rendering the award patently illegal.
The issue raised by learned counsel for the land owners for sustaining the award as the modified relief granted under Section 34 of the 1996 Act was not being pressed has been rendered academic and needs no further expounding - the impugned orders and the award are set aside - Appeal allowed.
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2023 (4) TMI 1395
Dishonour of Cheque - correct interpretation of Section 353(7) (8) of Code of Criminal Procedure, 1973 - Up to what extent Section 465 of Code of Criminal Procedure, 1973 pressed into service?
HELD THAT:- The object and purpose of the statute under which the accused is being tried are also relevant factors while interpreting Sub-section (7) (8) of Section 353 and Section 465. With the introduction of Sections 143 A and 148 of the Negotiable Instruments Act 1881, the legislature has made it clear that the trial in the cases of dishonour of cheques is to ensure that the faith of ordinary citizens dealing with Negotiable Instruments is strengthened. The endeavour of the legislature, while amending the provisions of the Negotiable Instruments Act, is to ensure expeditious disposal of a complaint involving dishonour of cheque. Introduction to Section 143(a), 148 is one of such steps taken by the legislature to ensure that the proceedings under Section 138 of Negotiable Instruments Act, 1881, are tried expeditiously and effectively. While interpreting Section 353(7)(8) of the Code of Criminal Procedure, the Court cannot forget that it deals with complaints under Section 138 of the Negotiable Instruments Act 1881.
The Apex Court, in the case of K.S. Panduranga Vs. State of Karnataka [2015 (8) TMI 1139 - SUPREME COURT] was considering a case where the High Court decided the appeal arising out of conviction under the Prevention of Corruption Act, 1947 on merits in the absence of an advocate of the accused. On the other hand, the Apex Court distinguishing the judgment in the case of Bani Singh Vs. State of U.P. [1996 (7) TMI 562 - SUPREME COURT], held that the Appellate Court could decide a criminal appeal in the absence of counsel for the accused if the counsel remains absent deliberately or shows negligence in appearing.
In the facts of the present case, it appears from the undisputed facts and material on record that the accused was consistently absent during the trial and at the stage of making oral submissions. The learned Magistrate granted the fair opportunity to the accused by adjourning the delivery of judgment on three occasions. If the accused is not remaining present, there is no law which mandates that the Magistrate enforce the presence of the accused by adopting coercive means. Sub-section (7) of Section 353 protects the learned Magistrate from requiring the presence of the accused at the time of delivery of judgment, particularly in the proceedings arising out of Section 138 of the Negotiable Instruments Act, 1881.
Conclusion - The absence of the accused at the time of delivery of judgment in the facts of the case has not resulted in a failure of justice, and in view of Subsection (7) of Section 353 of the Code of Criminal Procedure which protects judgment delivered by the Criminal Court in the absence of any party or its pleader, the Appellate Court was not justified in setting aside the order of conviction and sentence imposed by the learned Magistrate.
The impugned judgment and order passed by the Additional Sessions Judge Greater Mumbai is quashed and set aside - proceeding should be remitted back to the Appellate Court for a decision on merits - Petition allowed.
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2023 (4) TMI 1394
Condonation of delay in filing appeal - sufficient cause for delay present or not - whether the mistake is bonafide or was merely a device to cover an ulterior purpose? - HELD THAT:- Has applicant shown any sufficient cause or has applicant acted not in a negligent manner is something we have to decide by considering the application. In the application, it is stated that on 7th January 2023 the impugned order was passed and the certified copy was applied on 30th January 2023 and delivered on 1st February 2023. No explanation is given for this delay of about 23 days. In paragraph 5, it is simply stated “However, in spite of Applicant/Appellant’s advocate best and sincere efforts, the scrutiny and other connected process could not be completed earlier, the appellant is apologetic for this delay. On merits, the appellant has got a very good case. ” It is also stated that the delay is not deliberate nor intentional. Beyond this, there is no explanation whatsoever to explain why the delay should be condoned.
This does not satisfy the requirement of “sufficient cause” being made. Moreover, it is an appeal filed under Section 37 of the Act and as held by the Apex Court in Executive Engineer V/s. M/s. Borse Brothers Engineers and Contractors Pvt. Ltd. [2021 (3) TMI 1458 - SUPREME COURT (LB)], the object of speedy disposal will be defeated if this Court condones the delay routinely without being satisfied that a sufficient cause is shown.
Conclusion - A "sufficient cause" must be shown to justify condoning delays in filing appeals, particularly in the context of arbitration and commercial disputes, where the objective is to ensure speedy resolution. The interim applications for condonation of delay dismissed, as the applicant failed to provide a satisfactory explanation for the delay.
Both interim applications stand dismissed.
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2023 (4) TMI 1393
Cancellation of the petitioner's registration under the Goods and Services Tax (GST) regime - Non-speaking order - violation of principles of natural justice - HELD THAT:- Bihar Goods and Services Taxes Rules, 2017, GST REG-19 has a specific column where reasons have to be assigned. However, the Assessing Officer seems to be labouring under the belief that when an assessee does not appear or an objection is not filed, no reasons have to be assigned.
The said order cannot be countenanced especially when there is absolutely no reason stated regarding the cancellation of registration.
Notification No. 3 of 2023 has been brought in by the Central Government on the recommendations of the G.S.T. Council wherein if the cancellation has been effected for failure to file returns under clause (b) or clause (c) of Sub-section (2) of Section 29, there is a further period allowed up to 30.06.2023, wherein the registered person can apply for invocation of cancellation. This is also subject to the condition that the return should be filed up to the effective date of cancellation of registration and the payment of tax, interest, penalty and late fee in respect of such returns have also been made.
Conclusion - The cancellation order was set aside due to its non-speaking nature and violation of natural justice. The petitioner was granted the opportunity to seek remedy under the applicable notification.
Petition allowed.
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