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2020 (7) TMI 845
Seeking grant of interim bail - Bail sought on medical grounds - HELD THAT:- The petitioner is granted interim bail for a period of 45 days from the date of his release, on his furnishing a personal bond in the sum of Rs. 25,000/- with a surety of the like amount, to the satisfaction of the Duty MM/Jail Superintendent concerned. The bail is granted subject to the conditions imposed.
Bail application allowed.
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2020 (7) TMI 844
Seeking withdrawal of the present writ petition since his client has decided to approach NCLT, Mumbai under the Insolvency and Bankruptcy Code - HELD THAT:- The writ petition is dismissed as withdrawn with liberty sought for.
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2020 (7) TMI 843
Challenge to majority arbitral award - contravention of the provisions of section 3(4) and section 4 of the Competition Act by the respondent and its group companies - petitioner filed an application under section 16 of the Arbitration Act raising a plea of jurisdiction and praying for dismissal of the claims made by the respondent for want of jurisdiction.
Whether present dispute was not arbitrable as alleged in the statement of defence? - HELD THAT:- The tribunal rightly held that the adjudication by the tribunal shall be in the nature of the right and liability of the parties to the agreement and would relate to right in personam and not right in rem. If the arbitral tribunal would have held that it had no jurisdiction in the matter and would have dismissed the claim of the respondent, the respondent would not have any remedy at all. In the proceedings before the CCI, whatever may be the outcome, the respondent would not be able to get any effective relief or decree or award directing the petitioner herein to pay the particular amount to the respondent. The arbitral tribunal rightly held that the respondent had certain rights under the 2015 SLA and thus it must also have remedy for enforcement of such rights. If the challenge to the jurisdiction of the tribunal by the respondent is upheld, it would result in dismissal of the claim without adjudication of the merits and without granting any relief to him. The tribunal accordingly rightly held that wherever there is right, there is a remedy or where there is no wrong without remedy.
Does the Competition Act apply to the 2015 Sub- license Agreement? - HELD THAT:- The arbitral tribunal held that it was clear that the question whether or not Competition Act, 2002 applies to 2015 SLA can and is to be decided only by the CCI. It is rightly held that once the CCI is empowered to determine the said question, section 61 of the Competition Act bars the arbitral tribunal from considering the said question. After adverting to section 61 of the Competition Act and after noticing the admitted facts that the CCI is still investigating the matter and no orders have yet been passed by the CCI under Section 26 or under Section 27, the arbitral tribunal rightly held that that issue will be decided by the CCI.
Whether section 61 of the Competition Act would exclude the jurisdiction of the Arbitral Tribunal in entertaining monetary claim arising out of the 2015 SLA though CCI has no jurisdiction to entertain any such monetary claim made by one party against another party to the SLA under the provisions of the Competition Act or not? - HELD THAT:- The petitioner did not dispute before this Court that the said 2015 SLA was executed after detailed negotiations held by the petitioner with full independent legal advice received by the petitioner of its implications. There is also no dispute that various State Government Price Notifications relied upon by the petitioner before this Court fixing maximum sale price at which the petitioner could sell the seeds were already existing before the execution of the said 2015 SLA between the parties. No objection about the rate was however raised by the petitioner at that stage. The trait value in respect of which the dispute between the parties arose was one of the components of maximum selling price of cotton seeds prescribed under those State Government Price notifications referred to and relied upon by the petitioner.
A perusal of the record clearly indicates that neither the petitioner nor its associate companies had during the relevant period even made any attempt to avoid the said 2015 SLA and had availed off the benefits under the said agreement. Even before the CCI, the petitioner and its associate companies had never sought avoidance of 2015 SLA but had challenged the termination of notice issued by the respondent thereby terminating the 2015 SLA and had prayed for the stay of termination of 2015 SLA - the stand taken by the petitioner is totally inconsistent with each other and is mutually destructive. Even during the course of the arguments, none of the counsel appearing for the petitioner addressed this Court on the issue of quantification of the amount awarded by the arbitral tribunal or on the merit of the claim decided by the arbitral tribunal in the impugned award but addressed only on the issue of jurisdiction of the arbitral tribunal.
Reliance placed on Section 17 of the Arbitration Act in support of the submission that the arbitral tribunal is empowered to suspend the arbitral proceedings is misplaced. Under Section 17, the arbitral tribunal is empowered to grant interim measures on the grounds and the circumstances set out in the said provision. Section 17 does not empower the arbitral tribunal to suspend the arbitral proceedings.
It is thus clear beyond reasonable doubt that the arbitral tribunal could neither terminate nor suspend the arbitral proceedings before the CCI under the provisions of the Competition Act nor could refuse to deal with the monetary claims arising out of the 2015 SLA merely on the ground that the issue of validity of the 2015 SLA by the Central Government by filing a reference or in view of the information filed by the petitioner before the CCI under provisions of the Competition Act is pending before the CCI - there is no substance in the submission made by the learned senior counsel for the petitioner that the arbitral tribunal ought to have awaited for the outcome of the pending proceedings before the CCI and could not have made an arbitral award though admittedly there was no dispute on the merits of the claim. There is no substance in the submission that the issues in the arbitral proceedings being related to the issues pending before the CCI and thus even if the part of the claims were arbitrable and other part was not arbitrable, the entire proceedings before the arbitral tribunal became non-arbitrable.
There is no merit in the submission of the learned senior counsel for the petitioner that the respondent could have applied for extension of time for indefinite period for making an arbitral award or for some period beyond the date of disposal of proceedings before CCI under Section 29A(4) of the Arbitration Act. This submission is in the teeth of Section 29A(4). Court has no power to grant such extension for indefinite period or to indirectly suspend the arbitral proceedings under Section 29A (4) of the Arbitration Act.
Whether or not the Competition Act applies to the 2015 SLA? - HELD THAT:- If the arbitral tribunal would have rendered a finding one way or the other on the issue nos.3(a) to 3(f) as formulated based on the pleadings filed by the respondent, that would have amounted to the arbitral tribunal exceeding its jurisdiction and would have been in violation of Section 61 of the Competition Act and not otherwise. The decision of the arbitral tribunal awarding the monetary claims made by the respondent under the said 2015 SLA would not amount to the arbitral tribunal wrongly assuming the existence of jurisdictional facts. The arbitral tribunal is empowered to exercise powers in view of the existence of arbitration agreement and to find out whether the claims made before it are arbitrable or not. Such exercise would not amount to assuming the existence of the jurisdiction facts.
In view of the limited judicial intervention prescribed under section 5 of the Arbitration Act, the arbitral tribunal or this Court could not have either terminate or suspend the arbitral proceedings in view of there being no such power available or prescribed under the Arbitration Act for either termination of the arbitral proceedings or for suspension thereof in view of the pendency of the complaint filed by the Central Government or the information filed by the petitioner before the CCI.
The judgment of Supreme Court in case of Mahavir J. Patil [2009 (4) TMI 1067 - SUPREME COURT] relied upon by the learned senior counsel for the petitioner is clearly distinguishable in the facts of this case. Supreme Court in the said judgment had considered Section 12 of the Resettlement Act, 1976 and held that it was the clear legislative intent as Section 12 of the Resettlement Act clearly stipulated that any transfer by way of sale, partition, etc after the date of notification under Section 11 would be void. It is held that where the statue itself is against a transfer, it is the statue which will pre-dominate vis-a-vis the other consideration. The said judgment would not apply to the facts of this case even remotedly.
A perusal of the award clearly indicates that the arbitral tribunal has rightly allowed the monetary claims made by the respondent after considering the pleadings, evidence, oral and written arguments advanced by the parties. In so far as the merit of the claim is concerned, the petitioner did not raise any dispute on the quantification nor agitated any submission across the bar while arguing the arbitration petition at length before this Court. None of the findings rendered by the arbitral tribunal shows any perversity or any patent illegality in the impugned award - no case is thus made out by the petitioner for intervention with the impugned award in Commercial Arbitration Petition and thus the said petition deserves to be dismissed.
Challenge to tribunal's award on the grounds of public policy and patent illegality - HELD THAT:- The court found no evidence of such violations. The tribunal's decision was based on a plausible interpretation of the contract and the evidence, and thus did not warrant interference under Section 34 of the Arbitration Act.
Conclusion - A perusal of the award clearly indicates that the arbitral tribunal has rightly allowed the monetary claims made by the respondent after considering the pleadings, evidence, oral and written arguments advanced by the parties. In so far as the merit of the claim is concerned, the petitioner did not raise any dispute on the quantification nor agitated any submission across the bar while arguing the arbitration petition at length before this Court. None of the findings rendered by the arbitral tribunal shows any perversity or any patent illegality in the impugned award.
The petitions challenging the arbitral award dismissed.
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2020 (7) TMI 842
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- We find that the claim of the assessee was allowed on the basis of the decision of the Hon’ble ITAT in the assessee’s own case for the A.Y.2008-09, 2009-10, 2010-11, 2011-12 & 2012-13[2014 (1) TMI 1183 - ITAT MUMBAI], [2016 (3) TMI 1351 - ITAT MUMBAI], . [2016 (3) TMI 1387 - ITAT MUMBAI] and [2018 (7) TMI 2141 - ITAT MUMBAI]
The issue has already been allowed by the Hon’ble ITAT in the assessee’s own case. No law contrary to the law relied by the Hon’ble ITAT as well as by the CIT(A) in his order has been produced before us. We nowhere found any material to interfere with the finding of the CIT(A). We are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
Applicability of the provisions u/s 14A r.w.r 8D while computing the Book Profit u/s 115JB - CIT(A) has decided the matter of controversy on the basis of decision in the case of ACIT Vs. Vireet Investment P. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] It is specifically held that the provisions u/s 14A r.w.r 8D is not applicable while computing the book profit u/s 115JB. No law contrary to the law relied by the CIT(A) in his order has been produced before us. CIT(A) has correctly applied the decision in the case of ACIT Vs. Vireet Investment P. Ltd.(supra). The facts are not distinguishable.
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2020 (7) TMI 841
Discharge of statutory functions under the Real Estate (Regulation and Development) Act, 2016 till the effective functioning of Odisha Real Estate Appellate Tribunal as per Section 45 of Real Estate (Regulation and Development Act, 2016 - alleged violations of several provisions of the Real Estate (Regulation and Development) Act, 2016 - grievance made by the petitioners is that due to non-functioning of the Real Estate Appellate Tribunal, they are facing difficulties, for which they have approached this Court by filing these writ applications - HELD THAT:- The legislature has enacted the Act, 2016 and Rules framed thereunder to allow Real Estate Regulatory Authority and Real Estate Appellate Tribunal to act independently in order to achieve the object but not to frustrate the purpose by any means. In view of the provisions contained under Section 44(1) of the Act itself, that the appropriate government or the competent authority or any person aggrieved by any direction or order or decision of the authority or the adjudicating officer may prefer an “appeal” to the appellate tribunal. As per sub- section (2) of Section 44, appeal should be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the authority or the adjudicating officer is received by the appropriate government or the competent authority or the aggrieved person along with accompanied fees.
In Bolin Chetia v. Jagdish Bhuyan, [2005 (3) TMI 831 - SUPREME COURT] the apex Court held, in its natural and ordinary meaning the word ‘appeal’ means a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum.
In James Joseph v. State of Kerala, [2010 (8) TMI 959 - SUPREME COURT] the apex Court held, an ‘appeal’ is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.
It is pertinent to mention here that a high level committee meeting was held on 06.03.2020 with regard to various requirements to be fulfilled to make the Real Estate Appellate Tribunal functional and for creation of different posts in the appellate tribunal on restructure and with regard to delay in taking steps for absorption of staff in the appellate tribunal from the erstwhile Odisha Administrative Tribunal - the proposal for giving financial autonomy to the Appellate Tribunal is pending with the government since 20.01.2020. Though reminder has already been issued on 05.05.2020, but no effective steps have been taken till date. It clearly indicates the apathetic attitude of the State Government in not allowing the statutory Appellate Tribunal to function in accordance with law, which itself amounts to causing obstruction in course of administration of justice.
This Court is of the considered view that the grievance of the writ petitioners would be meted out in the event Real Estate Appellate Tribunal would be made full functional with the financial autonomy and heads of account by allocating funds from the Real Estate Regulatory Fund as per the budget independently.
The State Government is directed to give financial autonomy to the Odisha Real Estate Appellate Tribunal by allocating funds from the Real Estate Regulatory Fund on every year by making suitable budgetary provision along with separate heads of account for smooth management of the said forum, so that it will not cause prejudice to any authority, as the RERA and Real Estate Appellate Tribunal are two separate independent bodies and discharging their duties as per the provisions contained under the Act, 2016 and Rules framed thereunder - Petition allowed.
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2020 (7) TMI 840
Dishonour of cheque - vicarious liability of directors before the issuance of the dishonored cheque - Section 141 of the Negotiable Instruments Act - HELD THAT:- Section 141 of the NI Act has envisaged vicarious liability on the part of the Directors or other persons, mentioned therein, of the company who were in charge of and responsible for the conduct of the affairs of the company at the time the commission of the offence. A person would be vicariously liable for commission of the offence under Section 138 of the NI Act by the company only in the event the conditions laid down in Section 141 in the NI Act are satisfied.
The decision rendered in Anita Malhotra vs. Apparel Export Promotion Council and another [2011 (11) TMI 532 - SUPREME COURT] is also in similar lines, following Harshendra Kumar D [2011 (2) TMI 1278 - SUPREME COURT]. In Anita Malhotra, the appellant was a non-executive Director on the Board of M/s Lapareil Exports (P) Ltd. resigned from the Directorship w.e.f. 31.08.1998. On 20.11.1998, recording the resignation of the appellant, the company filed statutory Form 32 with the Registrar of Companies. A notice dated 10.12.2004 was issued to the appellant regarding dishonour of alleged cheques under Section 138 of the NI Act and thereafter, a complaint case was filed arraigning the company and the Directors of the company as accused persons with the appellant as one of the accused persons, accused no. 3 to be precise.
Section 168 of the Companies Act, 2013 has provided that a Director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed. Resignation of a Director takes effect from the date on which the notice is received by the company or the date, if any, specified by the Director in the notice, whichever is later. Earlier, it was statutory Form No. 32 under the Companies Act, 1956 by which the fact of resignation was to be intimated to the Registrar of Companies. Under the Companies Act, 2013, the fact of resignation of a Director is to be submitted in the prescribed Form No. DIR-12.
The documents submitted in support of the contentions advanced by the petitioners are found acceptable and free from any doubt, more particularly, in view of failure on the part of the complainant to put the same under any cloud and in the face on non-traversal of the same by the accused no. 1 company and any of its existing Directors who are facing the trial pursuant to the order taking cognizance. From the documents, it is amply demonstrated that the accused no. 3 resigned from the post of Director on 22.09.2017 whereas the accused no. 4 resigned from the post of Director of the accused no. 1 company on 11.06.2018 - These facts amply go to show that on the date the offence under Section 138 of the NI Act was deemed to have been committed due to dishonour of the cheque dated 22.10.2018, the petitioners were not the Directors in the accused no. 1 company and they could not be held responsible for the conduct of its affairs and for that matter, for the issuance and dishonour of the cheque under reference. They were not in the accused no. 1 company as Directors on the date the cause of action to file the complaint arose. In the above view of the matter, if the criminal proceeding of Complaint Case no. C.R. 6697C/2018 is allowed to proceed against the two petitioners, it would amount to abuse of the process of the court resulting in prejudice to the petitioners.
This Court is of the considered view that this is a fit case to exercise the power under Section 482 of the Code to stop the petitioners from undergoing the trial. The proceeding against the petitioners was stayed earlier by an interim order - This criminal petition is, accordingly, allowed.
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2020 (7) TMI 839
Validity of communication issued to Kotak Mahindra Bank as well as HDFC Bank under FEMA - communication directed the banks to stop operations in certain accounts to prevent withdrawal that could affect the investigation - As stated three accounts mentioned therein are suspected to be involved in a case under FEM - Appellants pointed out that the learned Single Judge has held that the impugned communication has lost its efficacy by virtue of Section 132 (8A) of the Income Tax Act, 1961 as the period of sixty days has expired.
HELD THAT:- On a plain reading of Section 37 of the FEMA it is clear that sub-sections (1) and (2) confer a power to carry out an investigation for the contravention referred to in Section 13. An officer who is empowered to carry out the investigation is conferred with all the powers which are conferred under the Income Tax authorities under the said Act of 1961 and is entitled to exercise the said powers. That is the specific provision of sub-section (3) of Section 37 of the said Act of 1999. Therefore, the investigating officer by exercising the power under Section (3) of Section 37 could have taken recourse to the provisions of Section 132 of the Act of 1961 by passing a specific order.
The communication directing the banks to stop operation of the accounts could have been based on an order passed under sub-section (3) of Section 132 of the Act of 1961. However, it is an accepted position that even an order under sub-section (3) of Section 132 putting a restraint on the operation of the accounts was not at all passed.
Therefore, it is not necessary to interfere with the impugned order, inasmuch as the admitted position which emerges today is that there was no order passed by the investigating officer in exercise of the powers under sub-section (3) of Section 37 read with Section 132 of the Act of 1961. Therefore, there was no order of freezing of the accounts. Only on this ground, we decline to entertain this appeal and the same is disposed of.
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2020 (7) TMI 838
Seeking grant of bail - possession of 94 capsules of WE WECARE and 115 capsules of SPM PRX WOCKHARDY and in all 209 capsules, which weighed 125.72 grams - HELD THAT:- Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], a Constitutional bench of Supreme Court held that 'It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.'
Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
After considering the fact that the main accused from whom the police had recovered the capsules for which the present petitioner stands arraigned as co-accused, has already been released on bail, coupled with the situation that the only admissible evidence between the main accused and the bail petitioner being a couple of phone calls on the day when the main accused was arrested, and the fact that at the time of arrest the I.O. did not seek search warrant of his house or associate the police official of the concerned jurisdiction to search his house to trace similar kind of capsules and other contraband from his house, cumulatively would not be sufficient to deny him bail. Another factor is the lock-down due to Covid-19 disease did not prohibit the police to arrest the accused as such the reasons to explain the delay in arrest is not supported by any guidelines of the State or Central Government, which prohibits the police to conduct the investigation. Therefore, in the cumulative effect of all these factors, the petitioner is entitled to bail.
The Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 50,000/-, (INR Fifty thousand only), to the satisfaction of the Trial Court - Petition allowed.
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2020 (7) TMI 837
Fraudulent transactions - Existence of fraud or mis-appropriation or not - requirement of registration of FIR - HELD THAT:- Since the learned SPP for the CBI is not present today the Investigating Officer on his behalf submits they intend to file a reply. Be filed within two weeks from today with an advance copy to the learned counsel for the petitioner.
List on 30.07.2020 and till then the order dated 10.06.2020 passed in W.P.CRL.645/2020 shall be applicable in the present two matters also.
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2020 (7) TMI 836
Bogus purchase - information of Sales Tax Department and consequential disallowance of freight and lorry hire charges - HELD THAT:- No reason to come to a conclusion that the purchases in this case of an intermediary are fake or bogus. We find that all the parties in question are registered with the VAT Authorities and that payments have been made through cheques. Except for the fact that the assessee could not be found by the Inspector of the Income Tax Department for service of notice and the mention by the Sales tax Authorities that there is mis-match in the numbers of trucks and that some are non-transport trucks, the revenue has no evidence whatsoever to support this disallowance. When one to one reconciliation of purchase and sales is made by the assessee, no disallowance can be made. Quantitative reconciliation of stock is not challenged by the Revenue. Hence, in view of the above discussion, we delete the addition made on account of bogus purchases. Consequently, the disallowance made on account of transport payments are also deleted.
Rejection of the books of the accounts by the AO - HELD THAT:- We find that the AO his order rejected the books of accounts for the sole reason that he came to the conclusion that the purchases were bogus. As we have held otherwise, the rejection of books of accounts by the Assessing Officer is bad in law. Even otherwise, we find that though the Assessing Officer rejected the books of accounts, the entire assessment has been based on these very books of accounts only. Thus we allow Ground No. 4 of the assessee.
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2020 (7) TMI 835
Validity of reopening proceedings u/s 147/148 - During pendency of the writ petition, it appears that assessment order came to be passed and challenging the order passed by the learned Single Judge, the present appeal has been filed.
HELD THAT:- In the present Special Appeal came to be filed seeking to challenge the subsequent order passed in assessment.
We are afraid, we cannot entertain the appeal since the appellant has alternative efficacious remedy of appeal/challenge before the learned Single Judge, if so advised.
In view of the subsequent development, the present appeal has been rendered infructuous and the same stands dismissed as having become infructuous. The appellant is at liberty to seek remedy against the order of assessment as the assessee may advice. All pending applications also stand dismissed.
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2020 (7) TMI 834
Seeking grant of Regular bail (second bail application) - Smuggling - possessing 3 k.g. & 285 grams of Charas - HELD THAT:- Prior to the present petition, the petitioner has filed a similar bail petition, which was decided on merits, vide a detailed order dated 20.12.2019, passed in Cr.MP(M) No. 2150 of 2019. Since there is no changed circumstances, the present petition is dismissed.
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2020 (7) TMI 833
Recording of settlement arrived at between the parties - Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 - parties have amicably settled the dispute and the Corporate Debtor has agreed to accept the amount towards full and final settlement of all claims - HELD THAT:- As the parties have reached the settlement and the ‘Committee of Creditors’ was not constituted, in exercise of powers conferred under Rule 11 of the NCLAT Rules, 2016, the impugned order dated 27th May, 2020 is set aside and exit from the ‘corporate insolvency resolution process’ which is permissible in terms of the verdict of the Hon’ble Apex Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] is allowed. The matter is accordingly disposed of in terms of the ‘Settlement Agreement’ between the parties.
In effect, order (s) passed by Ld. Adjudicating Authority appointing ‘Interim Resolution Professional’, declaring moratorium and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Resolution Professional’ are set aside.
Appeal disposed off.
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2020 (7) TMI 832
Seeking grant of default bail - whether the date of remand of the accused be excluded from computation of period of 90 days, as envisaged under Section 167(2) of Cr.P.C.? - HELD THAT:- In the case of SADHWI PRAGYNA SINGH THAKUR VERSUS STATE OF MAHARASHTRA [2011 (9) TMI 1078 - SUPREME COURT], it was observed that the relevant date of counting 90 days for filing the charge-sheet is the date of first order of remand and not the date of arrest.
In SANJAY DUTT VERSUS STATE THRU. C.B.I. BOMBAY [1994 (9) TMI 351 - SUPREME COURT], the Constitution Bench considered the provisions of Section 167 of Cr. PC and Section 20 of TADA Act and it was held that the indefeasibly right accruing to the accused in such situation is enforceable only prior to filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of.
Thus, consistently, it has been held that the detention is authorised from the date of remand and therefore, the period of 60 days or 90 days starts running from the date of the order of the remand. The date of remand has not been excluded in those decisions.
The applicant was arrested and remanded to custody on 26th February 2020. The applicant was in custody from the date of first remand for a period of 4 days in the month of February (since February consisted of 29 days this year), 31 days in March, 30 days in April. 90 days were completed on 25th May, 2020. Application for default bail was preferred on 26th May, 2020 being 91st day, at 10.35 a.m. The Court called for report from the office and IO on the 26th May, 2020. The note put up by Office Superintendent indicate that after filling the application charge-sheet is received and it is under scrutiny and registration. It is not clear from the order as to when the cognizance was taken. Be that as it may application was prior in point of time. Hence the right under Section 167(2) of the Code had accrued in favour of applicant. The applicant is entitled for bail in accordance with aforesaid provision.
The applicant is directed to be released on bail, registered with Navghar Police Station, in accordance with Section 167(2) of Cr.P.C. On executing P.R. Bond in the sum of Rs. 50,000/- with one or more sureties in the like amount - bail application allowed.
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2020 (7) TMI 831
Fraudulent and manipulative trading in the scrips - illegal gains made by the Noticees through the fraudulent and manipulative trades - SEBI was directed by SAT to bring out the date-wise reversal of trades done by the trading Noticees and pass a fresh order within a period of three months after granting an opportunity of hearing - HELD THAT:- In securities market, ‘reversal trades’ are understood to be trades where the parties after executing a trade enter into a ‘reverse trade’ or opposite trade for similar quantities usually within a short time period. However, as held by the Hon’ble Tribunal in the matter of Anita Dalal, in a given case reversal transaction could also happen over multiple days. What is important is the intention of the parties to manipulate the scrip as can be noted from the nature of their trades across multiple days.
The Hon’ble Supreme Court in the matter of SEBI v. Rakhi Trading [2018 (2) TMI 580 - SUPREME COURT] had held that “Once the reversal transactions are shown to be non-genuine or shown to be fictitious creating a false or misleading appearance in the market for ulterior purpose and that the stock market was misused by such manipulative device, this is in clear violation of the provisions of PFUTP Regulations, 2003.”
In the present case, since it is established that all the Noticees were acting as a group and were engaged in manipulative trading in the scrip, have no hesitation in holding that the back and forth transaction in scrip between the Noticees have to be considered as reversal trades even though such trades happened across days.
Computation of the ill-gotten gains - Noticees have submitted that as per the data available from the BSE Price Volume Data in the scrip of Polytex, 75% of total trades had been marked delivery and 25% as intra-day during the investigation period. As can be noted from Table I, the cumulative buy value of the trades by the Noticees which have been taken for the purpose of calculating the ill-gotten gains was Rs. 2,28,90,79,601 and the sell value was Rs. 2,31,96,78,775. The STT and SEBI turnover fee paid at the applicable rates during the investigation period for such trades works out to Rs. 36,06,157.46. The ill-gotten gains made by the Noticees after excluding the eligible expenses would be Rs. 2,69,93,016.79.
Directions - As in exercise of the powers conferred upon me under section 19 of the SEBI Act, 1992 read with sections 11 and 11B of the SEBI Act, and Regulation 11 of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to the Securities Market) Regulations, 2003, confirm the computation of ill gotten gains made in SEBI order dated January 31, 2019 and hereby direct the Noticees to jointly and severally, disgorge an amount of Rs. 2,69,93,016.79, as ascertained along with interest calculated at the rate of 12% per annum from 17 December, 2012 onwards, till the date of payment. The above payments shall be made by the parties in the manner provided in the SEBI order dated January 31, 2019.
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2020 (7) TMI 830
Maintainability of appeal - Seeking release of amount against an order passed in arbitration proceedings - whether the present appeal, directed against an order passed in arbitration proceedings, is maintainable under Section 13 of the Commercial Courts Act?
HELD THAT:- Section 13 of the Commercial Courts Act provides for an appeal from orders passed by a Commercial Division of a High Court to the Commercial Appellate Division of that High Court, which are enumerated under Order XLIII of the CPC, as amended by the Commercial Courts Act or from orders which are mentioned in Section 37 of the A&C Act.
In KANDLA EXPORT CORPORATION & ANR. VERSUS M/S OCI CORPORATION & ANR. [2018 (2) TMI 412 - SUPREME COURT], while deciding an appeal arising from a decision of the Division Bench of the High Court of Gujarat that had dismissed an enforcement appeal which had arisen from an order passed in an execution proceeding under the Arbitration Act, in respect of a foreign award, the Supreme Court had observed an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an appeal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.
The present appeal is directed against an interlocutory order passed in proceedings under Section 36 of the A & C Act, whereby a part of the amount which had been deposited by the appellant in this court, has been directed to be released in favour of the respondents. Under Section 37, no appeal is maintainable from any order passed under Section 36 of the A&C Act. Further, Section 36 of the A&C Act does not attract the provisions of the Code of Civil Procedure. Since the statue does not provide for an appeal against and order passed under Section 36, it is axiomatic that the present appeal is also not maintainable.
The impugned order would neither fall under Order XLIII of the CPC, nor under Section 37 of the A&C Act. Therefore, the present appeal filed under Section 13 of the Commercial Courts Act, is not maintainable.
Appeal dismissed being not maintainable.
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2020 (7) TMI 829
Income deemed to accrue or arise in India - addition on account of alleged royalty taxable u/s 9 (l)(vi) of the Income Tax Act, 1961 read with article 12(3) of India Switzerland Double Taxation Avoidance Agreement - HELD THAT:- As decided in assessee's own case 2013-14, [2020 (11) TMI 466 - ITAT MUMBAI] we uphold the plea of the assessee and delete the impugned addition. No other issues were pressed before us. In any event, the other points raised in the appeal were in the nature of consequential levies. Decided in favour of assessee.
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2020 (7) TMI 828
Removal of defect in bail application - seeking hearing of bail application as it is a regular bail in which petitioners are in custody since 07.03.2020 (after removal of defects by petitioner) - HELD THAT:- It appears that the money transaction of Rs.53,60,000/- between the month of April, 2018 to November, 2019 in the bank account has been admitted by the petitioners. The petitioners are now ready and willing to deposit the said amount before the learned trial court. It appears that the informant has also filed a Civil Suit No.118 of 2019 before the Hon'ble High Court of Himachal Pradesh at Shimla for specific performance of contract but the agreement is not admitted by the petitioners, as such, this Court directs the petitioners named above to be released on provisional bail on furnishing bail bonds of Rs. 50,000/- each with two sureties of the like amount each to the satisfaction of learned S.D.J.M., Bokaro in connection with Balidih P.S. Case No.206 of 2019, corresponding to G.R. Case No.376 of 2020 on the conditions imposed.
Bail application allowed.
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2020 (7) TMI 827
Permitting the respondent No. 3 to investigate all purported violations of the provisions of the Prevention of Corruption Act, 1988 (PC Act, 1988), by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and to identify and investigate all persons involved in the alleged violation of the provisions of the PC Act, 1988 - impugned order bears reason for granting sanction to prosecute the concerned persons or not - petitioner has locus standi to question the impugned order or not - impugned order is a consent or sanction.
HELD THAT:- A perusal of the impugned Order indicates that the consent was to enable the respondent No. 3 to investigate the violations of the PC Act, 1988 by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and for identification and investigation of person/s involved in connection with the alleged violation of the provisions of the PC Act, 1988. The reference to the petitioner in the impugned Order was only incidental while recording the findings of the Enforcement Directorate and nothing else. The petitioner failed to establish as to how any of his rights were infringed or violated by the consent granted by the respondent No. 1 or as to how he was aggrieved by the consent granted under Section 6 of the DSPE Act, 1946. It is not the case of the petitioner that the respondent No. 1 could not itself investigate the offences committed by Mr. D.K. Shivakumar and other officials of the Government under the PC Act, 1988, based on the documents/information provided by the Enforcement Directorate - The word "sanction" found in the impugned Order is wrongly employed as what is contemplated under Section 6 of the DSPE Act, 1946 is only a "consent" to enable the respondent No. 3 to investigate the offences.
The word "consent" is phonetically, etymologically and textually different from the word "sanction" and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No. 1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word "consent" admits of myriad definitions as per its use in various legislations such as consent in contractual matters, consent in offences relating to human body, consent for establishment under the Environmental laws. In so far as the word "consent" found in Section 6 of the DSPE Act, 1946, it only means a "permission" of the concerned State in the Constitutional scheme of things.
Whether grant of consent under Section 6 of the DSPE Act, 1946 is more in the nature of an administrative Order and does not require enormous rejigging as the issue is whether to allow the investigation to be done by the CBI or not? - HELD THAT:- In so far as the present case is concerned, the raid was allegedly conducted by the Department of Income Tax followed by investigation by the Enforcement Directorate into the alleged acts of money laundering, which found violations of the PC Act, 1988. Thus, in the fitness of things, the respondent No. 1 has felt it appropriate that the violations of the PC Act, 1988 be investigated by the respondent No. 3. Even if it is assumed that the respondent No. 1 was required to apply its mind before granting the consent, the opinion of the Advocate General would indicate that the Enforcement Directorate had shared documents pertaining to the said investigation in the form of a complaint filed before the Special Court for Economic Offences, the communication made by the Enforcement Directorate to the Central Bureau of Investigation etc., and the impugned Order itself would indicate the circumstances that compelled it to grant consent. It is thus the subjective satisfaction of the respondent No. 1 which has resulted in a consent under Section 6 of the DSPE Act.
The writ petition is dismissed.
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2020 (7) TMI 826
Making additional entry in the Basic Tax Register on the basis of enabling orders passed under the Kerala Land Utilisation Order 1967 - Direction to applicants to pay 25% of the scheduled fee as enjoined in Sub Rule 17 of Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Rules 2008 as amended in 2018 consequent to the Amendment of Act, 2018 - HELD THAT:- Section 27A was brought into force on and with effect from 30.12.2017, to deal with change of nature of unnotified land, thus requiring any owner of an unnotified land desiring to utilise any Paddy land for residential or commercial purpose or for other purpose, to apply to the Revenue Divisional officer for permission in such manner as may be prescribed. True a procedure is prescribed there under in the matter of consideration of such an application. Admittedly, the applications were filed by the writ petitioners under the Kerala Land Utilization Order, 1967, prior to the aforesaid cut off date. Therefore, the applications so submitted had to be considered by the statutory authority in accordance with the procedure, and terms and conditions contained under the Kerala Land Utilisation order 1967 - none of the provisions contained under Section 27A of Act 2008, which has come into force only with effect from 30.12.2017, has any manner of binding force so far as the facts and circumstances of the appeals are concerned. It is also an admitted fact that the orders passed by the authority under the Kerala Land Utilization Order have become final and conclusive.
Section 27C applies, wherever a part of survey number of subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of Act 2008, and in which case, a new subdivision shall be created for the extent for which such orders for conversion are issued. Therefore it is clear that, Section 27C deals with a situation where an order is passed to convert the land as per the provisions of the Kerala Conservation of Paddy Land and WetLand Act, 2008. The rest of the provisions there under are consequential to Section 27C(1) and therefore only under the circumstances prescribed under Section 27C(1), the procedure can be followed by the Tahsildar - it is an admitted fact that the application was submitted by the writ petitioners on the basis of the orders secured by them under the provisions of the Kerala Land Utilization Order, 1967. Therefore, the provisions of Section 27C have no application.
The appellants have not made out any case for interference with the judgment of the learned Single Judge - appeal dismissed.
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