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Showing 1 to 20 of 1925 Records
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2019 (8) TMI 1926
Ex-parte order passed without allowing proper opportunity of being heard - As submitted before us that none appeared before the lower authorities due to ailment of assessee’s daughter, the matter may be remitted back to the file of the AO for denovo assessment - HELD THAT:- We heard the rival submissions and perused the material on record. We are of the considered opinion that it is a fit case to be remitted back to the file of the AO for denovo assessment after affording due opportunity of hearing to the appellant. Hence, appeal filed by the assessee is partly allowed for statistical purposes.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
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2019 (8) TMI 1925
Approval of Resolution Plan - appellant, as an assignee of Dena Bank and holding an exclusive mortgage, should be treated differently from other financial creditors or not - HELD THAT:- The Adjudicating Authority noticed the admitted claim against the ‘Corporate Debtor’ and the trade payables forming part of the ‘Operational Creditors’, the detailed chart of ‘Financial Creditors’ including ‘State Bank of India’, ‘Punjab National Bank’, ‘Exim’, ‘Allahabad Bank’, ‘Jammu & Kashmir Bank’, ‘Bank of India’, ‘Canara Bank’, ‘Corporation Bank’, ‘IDBI’, ‘Oriental Bank of Commerce’, ‘Bank of Maharashtra’, ‘Uco Bank’ and ‘SBI Global Factors’ has been shown and the details of ‘debt’ forming part of the ‘Operational Creditors’ has also been noticed by the Adjudicating Authority. After taking into consideration of the aforesaid aspects including the amount payable to the ‘employees’, ‘related parties’ and the ‘statutory dues’ as also viability and feasibility of the ‘resolution plan’, the impugned order of approval has been passed by the Adjudicating Authority.
There are no substance in the grievances being made by the Appellant. In absence of any discrepancies or discrimination, this Appellate Tribunal is not inclined to interfere with the impugned order. The appeal is dismissed.
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2019 (8) TMI 1924
MAT/Section 115JB applicability to assessee bank - HELD THAT:- This Court in case of CIT-LTU Vs. Union Bank of India [2019 (5) TMI 355 - BOMBAY HIGH COURT] held that Section 115JB would not apply to the banking companies.
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2019 (8) TMI 1923
Enhancement of compensation - Section 34 of The Arbitration and Conciliation Act, 1996 - whether the Court, in exercise of power under Section 34 of the Act is entitled to modify or vary the award passed by the Arbitrator? - HELD THAT:- A reasonable interpretation to Section 34 would only lead to an irresistible conclusion that the Court can modify or vary the award of the arbitrator if it is contrary to the material evidence adduced by the parties. Even otherwise, as contemplated under Section 34 (2) (v) (b) (ii) of the Act, when the award passed by the Arbitrator is in conflict with the public policy in our Country, reversal or modification of such award passed by the arbitrator is well within the provisions contained under Section 34 of the Act itself.
In the present case, as rightly observed by the learned single Judge, the non-constitution of a committee as per the direction of the Honourable Supreme Court in Vishaka case [1997 (8) TMI 456 - SUPREME COURT] is to be regarded as a statutory violation and contravention of public policy prevailing in India and therefore, the appellant is entitled for a just and fair compensation.
The learned single Judge, having held that the Court is empowered to modify or vary the award passed by the arbitrator, rightly, proceeded to conclude as to what would be the compensation payable to the appellant under claim No. 12. In order to arrive at the quantum of compensation the learned single Judge proceeded to discuss the material evidence available to conclude that there is a breach on the part of the Management in not constituting a committee.
The learned single Judge has not made any arithmetical calculation while awarding compensation under Claim No. 12. Even though the learned Arbitrator has awarded a sum of Rs. 2 crores under Claim No. 3 towards severance compensation, the learned single Judge proceeded to award a sum of Rs. 1,68,00,000/- towards non-constitution of a committee as directed by the Honourable Supreme Court in Vishaka case. The Court, in exercise of jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 shall vary or modify the amount awarded without disturbing the factual finding and such a course is legally permissible under Section 34 of the said Act.
Conclusion - The learned single Judge awarded Rs. 1,68,00,000/- for the non-constitution of a committee under the Vishaka guidelines, emphasizing the employer's obligation to provide a safe working environment. The appellate court found this amount excessive and reduced it to Rs. 50,000/-, deeming it a fair and reasonable compensation.
Appeal allowed in part.
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2019 (8) TMI 1922
Addition u/s 68 - exchange for shares held in another company, effectively a barter transaction - HELD THAT:- Assessee company allotted 25,800 equity shares to 3 applicant companies for Rs. 1,29,00,000/- in consideration for purchase of equity shares held by these applicant companies. Photocopies of the agreements entered in this regard are enclosed in paper book.
We note that the shares were allotted against consideration for purchase of equity shares held by these applicant companies; hence it is a barter system therefore, provisions of section 68 does not apply. Appeal filed by the Revenue is dismissed.
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2019 (8) TMI 1921
Application of Section 143A of the Negotiable Instruments Act - retrospectve or prospective application - Section 143A could be applied to cases where the offence under Section 138 of the Act was committed prior to the introduction of Section 143A on September 1, 2018 - HELD THAT:- The question which arose before the Hon'ble Apex Court in the case of G.J. Raja [2019 (8) TMI 91 - SUPREME COURT] was whether Section 143A of the Act is retrospective in operation and can be invoked in cases where the offences punishable Under Section 138 of the Act were committed much prior to the introduction of Section 143A. Hon'ble Apex Court after considering previous judgments including the case of Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT] held that 'Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence Under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book.'
The impugned order dated 24.07.2019 is not sustainable and same is hereby quashed and set aside - petition allowed.
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2019 (8) TMI 1920
Delay in filing the appeal before the CIT (A) - HELD THAT:- As circumstances for delay in filing the appeal before the Ld. CIT (A) were similar as were before the ITAT in filing the appeal on quantum in [2018 (11) TMI 1975 - ITAT CHANDIGARH] for the A.Y. 2005-06 to 2007-08 wherein a similar delay has been condoned.
However, the said order was not available to the Ld. CIT (A) as the impugned order has been passed by the Ld. CIT (A) earlier than the said order dt. 05/11/2018. It is also an admitted fact that the Ld. CIT (A) had not decided the issue on merit, we therefore by considering the totality of the facts deem it appropriate to set aside these cases back to the file of the Ld. CIT (A) to be decided afresh.
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2019 (8) TMI 1919
Whether the CESTAT was justified in remanding the matter for adjudication to the Primary Adjudicating Official, to first decide the issue of jurisdiction, after awaiting final decision by the Supreme Court in the appeal (by Special Leave) against Mangli Impex Limited Vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT]?
HELD THAT:- This Court is of the opinion that in larger interest of speedier resolution of the issues- rather than only deciding the question of jurisdiction, it would be appropriate that CESTAT should decide the merits of the appeals, i.e. the merits of the claims against the assessees, rather than remitting the matter for fresh overall consideration of the issues to each Adjudicating Authority. In the latter event, much time and energy will be spent, and avoidable delay would occur. However, on the other hand, if matters are remitted to the CESTAT for decision on merits, there would be a fair likelihood that many of them are resolved in favour of the assessees, in which event the way of further appeals and recourse to appellate proceedings by Revenue would be open. In these circumstances, the view in Davinder Singh [2018 (9) TMI 1946 - DELHI HIGH COURT] commends acceptance.
This Court is of the opinion that the view in other cases are not really precedential, but suggestive of our kind of approach, which in any event cannot be termed final, since the basic question regarding jurisdiction remains unresolved and would attain finality in the light of the Supreme Court’s decision.
All the matters are remitted to the CESTAT, which shall proceed to examine and decide the merits of the appeals - Appeal disposed off by way of remand.
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2019 (8) TMI 1918
Challenge to order of acquittal - kidnapping - Determination of the prosecutrix's age and its impact on the case - HELD THAT:- In the present case, a complaint dated 27th March 2015 was lodged with police station Defence Colony by Sh. 'VK' that he had left his minor daughter/prosecutrix 'K' (aged about 17 years) at her school around 9:30 a.m. on the previous day as she had her class Twelfth board examination. She had thereafter not returned home and he suspected that some unknown person had kidnapped her. In pursuance to the said complaint, a case was registered under Section 363 IPC and during the course of investigation, prosecutrix was recovered on 5th April 2015 from the possession of respondent-accused from House No. 187, 1st floor, Mausam Vihar, Village Pasonda, Sahibabad, Ghaziabad, Uttar Pradesh.
Though this Court is in agreement with the contention of learned APP for State that the prosecutrix was a minor on the date of the incident, yet the element of mens rea, which is an essential ingredient of Sections 363/366/376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him - It is also settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. The power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused.
The present leave petition, being bereft of merit, is dismissed.
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2019 (8) TMI 1917
Civil Suit for recovery of damages - territorial jurisdiction of the court to try this suit - suit barred by time limittaion or not - non-joinder of necessary parties - suit land was notified as forming part of the Wildlife Sanctuary or not - Plaintiff is entitled to damages or not - entitlement to interest - privity of contract between the parties to claim compensation - time limitation.
Claim for damages by the Appellant-whether sustainable? - HELD THAT:- It could at once be noticed that a few changes were brought about by the amending enactment i.e., Act No. 44 of 1991, having the effect of slightly altering the process of declaration of sanctuary. Prior to the said amendment, the notification Under Section 18(1) of the Act of 1972 was of the declaration of an area to be a sanctuary whereas, after the amendment, such notification Under Section 18(1) would be of declaration by the State Government of its intention to constitute an area as a sanctuary. However, the remaining part of the scheme of the provisions regarding the powers of the Collector to determine the rights; the bar over accrual of rights after issuance of notification Under Section 18; issuance of proclamation by the Collector; inquiry by the Collector; and the Collector's powers for the purpose of inquiry remained essentially the same.
The operation and effect of Section 20 of the Act of 1972 - HELD THAT:- The entire substratum of the case of the Appellant is knocked to the ground once it is found that the Appellant had acquired no right under the said second lease dated 20.03.1978 and least any right against the State. Noteworthy it is that in all the previous litigations, initially seeking exclusion of land in question from the sanctuary; then seeking compensation for its inclusion; and then questioning its exclusion, the Mutt had been an active participant. In fact, the last petition seeking to question the exclusion was filed jointly by the Mutt and the Appellant. However, the Mutt has not joined the claim for damages in this suit - Appellant had no right whatsoever to claim damages with reference to the alleged cause of action based on the order of exclusion dated 19.11.1993 for the reason that the alleged second lease was of no effect and the Appellant had acquired no right thereunder - suit filed by the Appellant is liable to be dismissed on this count alone.
Even if the Appellant had any right, there was no infringement - HELD THAT:- The Division Bench has rightly observed in the impugned judgment that there is nothing on record to establish that the original owner and the Plaintiff were prevented from going inside the forest and collecting the usufructs. In a comprehension of the facts on record and the law applicable, it cannot be said that the Plaintiff-Appellant was prevented from exercising its lawful rights in any unlawful manner by the State. Hence, there appears no basis for the Appellant to maintain an action for damages.
The Appellant had no case for claiming damages against the Respondent-State. Hence, it does not appear necessary to deal with various decisions cited by learned Counsel for the Appellant as regards violation of right to property and the claim for damages on that count.
The Division Bench of the High Court has rightly answered both the material questions i.e., as to whether the Appellant had any right in the subject land; and if there was any such right, as to whether the same had been infringed, against the Appellant in a proper manner and in accordance with law. No case for granting any decree for damages is made out.
Time Limitation - HELD THAT:- In the present case, except the fact that the earlier writ petition in challenge to the exclusion order dated 19.11.1993 was civil proceeding and the Plaintiff might have been prosecuting with due diligence, none of the other requirements of Section 14 of the Limitation Act are satisfied. The basic requirement, that the matter in issue in the earlier and the later proceeding ought to be the same; and both the proceedings, earlier and later, ought to relate to the same cause of action and for the same relief, is totally missing. Rather, the matter in issue in the earlier proceeding could well be contradistinguished from the matter in issue in the present suit. In the said earlier proceeding, the Plaintiff-Appellant joined the Mutt to assert that the Respondent-State was not entitled to exclude the land in question from sanctuary; and that the State ought to take the land and ought to pay compensation as proposed by some of its officers. On the other hand, the claim in the present suit is founded on the ground that the Plaintiff has suffered loss due to the proceedings under the Act of 1972 and then, due to exclusion of the subject land from acquisition.
The Plaintiff-Appellant consciously chose not to claim damages in the wake of the order dated 19.11.1993 and, instead, joined the Mutt to seek the relief that the said order dated 19.11.1993 be quashed and the land be not excluded from sanctuary. Having failed in such an attempt, the Appellant could not have maintained the claim for damages, by filing a suit in the year 1998 - Section 14 of the Limitation Act does not apply to the present suit; and, for being otherwise barred by limitation, the suit is liable to be dismissed on this ground alone.
The suit filed by the Plaintiff-Appellant was barred by limitation and even otherwise, the Plaintiff-Appellant had no case on merits to claim damages from the Respondent-State. The Division Bench of the High Court has rightly allowed the appeal filed by the State and has rightly dismissed the baseless suit filed by the Appellant - Appeal dismissed.
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2019 (8) TMI 1916
Recruitment for the post of Agricultural Field Officer (Scale-1) - Whether the courts would be justified in undertaking the exercise of providing equivalence to another qualification so as to declare it to be equivalent to the qualification prescribed in the recruitment Notification by taking note of the extraneous factors though such equivalence of qualification is not declared by the employer who makes the recruitment? - HELD THAT:- The private Respondents herein had applied in response to the said notification, on 24.11.2014 and despite the private Respondent in the appeal arising out of SLP(C) No. 16567/2016 had admittedly possessed the qualification of B.Sc. (Forestry) had indicated the qualification as Agro-Forestry in the application. Be that as it may, the process of selection was undertaken and appointment letter was issued to the private Respondents in the two appeals, on 17.09.2015 and 29.05.2015 respectively. In the letter of appointment, it was specifically mentioned that the appointment is subject to producing the original documents which included the proof regarding qualification.
It is no doubt true that on 18.11.2015 an Office Memorandum was issued by the Ministry of Agriculture and Farmers Welfare, Department of Agriculture, Co-operation and Farmers Welfare (Policy Division), whereby on taking note that no 4-year Bachelor Program in Agro-Forestry is available in the country and since Agro-Forestry is covered comprehensively as a subject in the ICAR approved syllabus for B.Sc. (Forestry), it was suggested that it will be appropriate that B.Sc. (Forestry) graduation be considered for the position of Agricultural Field Officer in Banks. Accordingly, a corrigendum dated 16.01.2016 was issued by IBPS. It is not in dispute that based on such decision taken, for the recruitment made subsequently, B.Sc. (Forestry) was included as the qualification for recruitment of Agricultural Field Officer (Scale-I).
The Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private Respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private Respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private Respondents gets included subsequently cannot enure to their benefit alone when several others who could have applied were prevented from doing so.
Though in the instant facts presently the qualification possessed by the private Respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion - the Appellant Bank of India to provide appointment to Smt. Aarya K. Babu as Agricultural Field Officer or such other equivalent post if the vacancy exists as on today or in the vacancy that would arise in future.
Appeal allowed.
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2019 (8) TMI 1915
Seeking leave to proceed under the provisions of the SARFAESI Act, 2002 in respect of its secured asset - proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- There cannot be any doubt that the bank is entitled under the SARFAESI Act, 2002 to put the property for sale in order to realize its claim against the parties to the proceedings and the jurisdiction of a Civil Court is clearly barred under Section 34 of the SARFAESI Act, 2002. The object for which the order was passed seems to have been frustrated by reason of the parties being unable to hand over vacant possession of the property to the bank. The learned counsel for the parties submit that there was no such direction in the order passed by the Co-ordinate Bench directing the parties to make over vacant possession of the property in question so as to enable the bank to put the property for sale as a vacant property without any encumbrance.
The learned counsel for the parties have submitted that the parties to the proceedings shall file affidavits of undertaking that the property should be sold free from all encumbrances and they shall hand over the possession of the property in favour of the successful buyer after the sale is concluded in terms of the order dated 24th January 2018.
The matter stands adjourned till 11th September, 2019 within which time all the parties shall file their respective affidavits of undertaking - Let this matter be treated as "heard in part".
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2019 (8) TMI 1914
Levy of service tax on academic blocks for IIT, Kanpur - commercial activity or not - Remand of matter back to the Original Adjudicating Authority for reconsideration based on the appellant's argument regarding the construction of academic blocks for IIT, Kanpur not being subject to service tax - HELD THAT:- From the impugned order passed by Commissioner (Appeals), it is found that he has observed that work orders were not placed on record and as such appellant’s plea cannot be addressed. On the other hand appellants have contended that such work order stand produced on record and were specifically brought to the notice of Lower Authorities.
Further in terms of the Tribunal’s order there are directions to decide the issue a fresh in the light of the various orders of the Tribunal which were placed before Commissioner (Appeals). He has not addressed the other judgements.
It is deemed fit to set aside the impugned order once again and remand the matter to Original Adjudicating Authority for doing the needful.
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2019 (8) TMI 1913
Money Laundering - scheduled offences - Provisional Attachment Order - burden of proof - reasons to believe - HELD THAT:- It is the admitted position that when the searches were conducted at the residence and office of the appellant, nothing was recovered. If any prima facie evidence is recovered at the time of search and seizure, then the burden of proof lies with the “party concerned” but merely on the basis of hearsay statement of other witnesses who alleged coaccused, even it cannot be held that the burden of proof is still upon the person concerned.
Unless the charges are framed with the offence of money laundering under Section-3 of the Act, the burden of proof still lies with the respondent to prove that the person concerned is involved with the offence of money laundering in order to invoke Section-3 of the Act.
Considering the overall facts and circumstances and without expressing anything on merit as to whether the appellant was involved or not as it is a matter of fact that the charges are yet to be framed. In advance, no finding can be arrived in the nature of present case of the appellant by concluding that the appellant is involved in money laundering without any recovery. Merely, on the basis of apprehension, one cannot be declared as accused, in advance, without any recovery. The said observations were made without application of mind as it would be prejudiced his case on merit at the time of framing of charges or trial, if the said findings against him are intact. Thus, the observations against him for involvement of money laundering are waived and quashed. The impugned order is modified against him in view of reason mentioned above. As far as “person concerned” where recovery is made, the burden of proof lies with them to prove their innocence as per law.
The appeal is partly allowed by modifying order against him. However, it is clarified that this order shall have no bearing when the matter is pending against the appellant on the basis of allegations.
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2019 (8) TMI 1912
Freezing of appellant's bank accounts - Money Laundering - scheduled offences - proceeds of crime - rejection of application u/s 17(4) on the ground that pre-conditions for invoking Section 17 of PMLA have not been complied with - Jurisdiction of the Enforcement Directorate in the current proceedings - HELD THAT:- All transactions are prior to 8.11.2016 and all transactions are with Delhi parties and through bank accounts of respective parties against the goods supplied. The documents speak from itself for the Para 11 at page 4 a specific contention was taken that all transactions of Appellant are prior to 8.11.2016 which in response was not refuted in counter in reply to corresponding paragraphs of appeal. Para 27 in PAO, the Attaching Officer asserted that bank accounts of Appellant and others were freezed "to preserve property suspected to be involved in money laundering as evidence" which is contrary to the scheme of statute.
The Appellant is not involved in any scheduled offence. He is not charge sheeted. The freeze of bank account was made on 17.02.2017 which he claimed to be doing again on 20.09.2017 and name of the Appellant is figuring at Sl.No.39. Now, recently the Respondent, ED has filed a complaint u/s. 3 of PMLA at Patna, Bihar after expiry of statutory period.
In the absence of any search u/s. 17 of PMLA, the bank accounts could not have been freezed and no extension or retention could be allowed. The said account can be treated illegal unless valid reasons to belief are recorded such reasons to belief in the light of the facts involved in the present case are missing.
The Appellant is not involved in scheduled offence. There is no report u/s. 173 Cr.PC in the absence of which there cannot be an attachment u/s. 5. The second proviso of Section 5(1) can only invoke in the special circumstances in emergency cases and separate of reason to believe is to be recorded in writing and if all conditions are to be fulfilled strictly as per provisions, than only the second proviso can be invoked. The same has not been happened in the present case as no reason to believe within the meaning of second proviso of Section 5(1) are filed or produced nor any copy was served to the appellant.
The case of the Respondent is that one Motilal misused the account of persons by depositing cash from which cheques were issued and thereby according to them black money was converted to white. The Respondents have given a chart in respect of flow of money from deposit of cash in Patna and travelling through several bank accounts to reach Appellant Company, how the appellant company would come to know whether the payment transaction against the goods were proceed of crime or not. The business relation between the appellant and traders have been many years prior to the date of 8.11.2008. There is not mechanism by any order to find out from his bank-account as to whether deposit amount was clean money or not.
The Respondents did not at all investigate the appellant due diligently above the transactions and against specific contention in the appeal. The Respondent in his counter at Para 32 of reply have not denied the receipt but have disputed that these interregnum parties on the scrutiny of the bank accounts from which money has travelled to Appellant, the Respondent has claimed that they were fake parties because allegedly the summons sent to them was received back - The accounts of known businessmen can be freezed merely on the basis of presumption and assumption and no criminal liabilities can be imposed without proper investigation and reasons to believe.
The Appellant has been able to demonstrate in his submissions in appeal and grounds that the order of freeze passed against the Appellant is without application of mind and against the facts available on record.
The appellant is not involved in the money-laundering of any kind. The impugned order dated 19th September, 2018 is set-aside against the appellant so as Provisional Attachment Order dated 31.03.2018 which is quashed. The accounts are defreezed forthwith - Appeal allowed.
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2019 (8) TMI 1911
Money Laundering - Provisional Attachment Order - proceeds of crime - scheduled offence - Whether the Appellant has committed any offence under Section 3 of the Prevention of Money Laundering Act, 2002? - HELD THAT:- The entire purchase consideration was funded from the Appellant's own income/personal funds obtained from legitimate and fully documented sources, as supported by the Appellant's Bank Statement. Therefore, it cannot be said that the Appellant and the Respondents 5 and 8 acted in concert or that the purchase of the said Property, was part of any conspiracy related to the predicate offence or the alleged offence under the PMLA.
It appears from the Impugned Confirmation Order that the Enforcement Directorate/Respondent and the Adjudicating Authority were aware that the Appellant was a 'Claimant' to the said Property in terms of proviso to Section 8(2), PMLA, in view of material available on record. Despite the above, Respondent and the Adjudicating Authority did not issue notice to the Appellant or to afford a hearing to him, during the adjudication proceedings. Thus, the mandatory statutory requirement of the Proviso to Section 8(2), PMLA, the Respondent was cognizant of the details regarding the purchase of the said property and was in possession of the relevant documents. A bare perusal of the same shows that the said Property could not have been attached as "proceeds of crime", even if one were to invoke the concept of "equivalent value".
Locus standi - HELD THAT:- It is settled law that the rights in any asset of a company acquired by any person prior to initiation of the winding-up proceedings against the said company are absolute and cannot be defeated by the winding-up proceedings, subject to the transaction being an arms-length transaction - In the present case, the Agreement to Sell entered into by the Appellant with M/s UBHL is dated 21.05.2012 and the entire purchase consideration was duly paid in advance by 22.09.2012 i.e. prior to even the initiation of the winding-up proceedings and much prior to the subject Provisional Attachment Order. Further, it is not even the Respondent ED's case that the purchase of the subject Property vide inter alia the Agreement to Sell dated 21.05.2012 is not an arms length transaction. As such, the rights of the Appellant would prevail over the rights of the other secured creditors and the Respondent ED.
Whether the subject property is proceeds of crime and the Appellant is in possession of proceeds of crime? - HELD THAT:- It is evident that the appellant was the claimant in the flat. By making the entire payment, the appellant is become stake-holder as the amount paid by the appellant was not proceed of crime. The appellant is also not involved in the money laundering. The question of link and nexus in the criminal activities directly or indirectly does not arise.
As far as the impugned order dated 1.12.2016 is concerned, the same is not sustainable in law as per facts of the present case. The same is set-aside against the appellant with regard to flat in question. The provisional order is also quashed accordingly by allowing the appeal.
Appeal allowed.
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2019 (8) TMI 1910
Demand of differential Central Excise duty with interest and penalties - intermixing of SKO with MS/HSD during movement of these petroleum products though pipeline - quantification of duty of intermixed part of SKO and MS/HSD - demand solely based on CBEC Circular No. 636/27/2002-CX dated 22.04.2002 - HELD THAT:- The fact is not in dispute that while clearing the goods, the appellant has cleared from the factory quantities of MS, HSD & SKO separately. Since all the three goods are supplied through a pipeline, the SKO get mixed with either MS or HSD. As per the provisions of Section 4, the excise duty is payable on the transaction value at the time of removal of the goods from the factory. In the present case, the goods cleared from the factory is MS/HSD and SKO. Accordingly, the duty on these products is payable as per price of the respective product prevailing at the time of removal of the goods. As regards MS and HSD, the duty was paid on the transaction value. As regards SKO, since the same was not sold, the duty was paid on the prevailing price of SKO on the basis of sale price prevailing for SKO naturally which is higher than the price of SKO sold under Public Distribution Systems. Therefore, the correct price was adopted by the appellant while clearing the interface quantity of SKO.
On careful reading of Board Circular dated 22.02.2002, it is found that the Circular suggests that even on clearance of SKO, the price of HSD/MS should be applied. However, this proposal of the Board Circular does not flow from any statutory provision. The appellant have correctly applied the price of respective goods cleared from the factory at the time of removal. Therefore, there are no support of any statutory provisions in the Board Circular. The Hon’ble Supreme Court has time and again, held that the Board Circular cannot vitiate the law or the Board Circular cannot be issued contrary to the statutory provisions.
The Board can only clarify the existing law but cannot create law by itself. Therefore, the above Board Circular dated 22.04.2002 having without having support of any Act or Rule, is not binding on the assessee.
After removal of goods, intermixing of SKO with MS/HSD amounts to manufacture or not - HELD THAT:- There is no charge in the Show Cause Notice that the activity of supplying HSD/MS with interface SKO amounts to manufacture. Therefore, on this point, the adjudication order travelled beyond the scope of show cause notice which is not permissible in the law - It is undisputed that the products of the appellant are not specified under third schedule, therefore, whatever activity mentioned in clause (iii) shall not apply to the goods which are not specified in Third schedule. For this reason, intermixing of SKO with HSD/MS does not amount to manufacture.
The differential duty demand raised on interface quantity of SKO is clearly not sustainable. Hence, the impugned orders are set aside and the appeals filed by the appellant are allowed.
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2019 (8) TMI 1909
Exemption u/s 10(23FB) - denial of exemption as assessee made investment in mutual funds and violated SEBI (VCF) Regulations and also violated the objects of clause of the trust deed - HELD THAT:- AO has not disputed that the trust deed of the assessee is registered under the provisions of registration Act. Further a registration is granted to the assessee by SEBI before 21st May 2012, which is still in force. AO has not brought any material on record by making investigation from SEBI, if the funds are not regulated in accordance with SEBI (VCF) Regulations.
Coordinate bench of Mumbai Tribunal in DHFL Capital Fund Vs ITO [2016 (2) TMI 269 - ITAT MUMBAI] held that, so far as SEBI does not find any default of any contravention of the provisions of the SEBI Act or SEVI (VCF) Regulation 1996, then it can be inferred that the assessee-trust fulfils the conditions laid down under these regulations.
Tribunal further expressed the view that the AO may report the matter of violations, if any, to the SEBI and if finally SEBI does not find any default, then the view of the AO that there is violation cannot survive. Thus, it is the SEBI, which has final authority to determine about the violation of the conditions, as it is the authority competent to deal with the same. It was also held that the AO has made his own interpretation of the term 'corpus', which was found to be incorrect as per the definition given in the new regulation which is not sustainable.
Certificate of Registration of assessee in the capacity of a VCF with SEBI is still continues to subsist; that there is no adverse report brought by assessing officer taken or likely to be taken by SEBI for violation of any VCF Regulations; that the targeted investment in VCUs is within the purview of VCF Regulations of SEBI; wherein the assessee is permitted by its Trust Deed dated 18th March 2006 as well as by the VCF Regulations of SEBI to deploy the funds in units of mutual funds. Therefore, in our view, the denial of exemption prescribed under Section 10(23FB) of the Act was not warranted, we hold so.
Denial of exemption u/s 10(34) and section 10(35) - income earned by assessee is a dividend from the investment made in venture capital undertaking to list of the assessee also on income from distributions from unit held in mutual funds and on the income earned from such investment in units of mutual funds - AO denied exemptions on the ground that the assessee does not qualify as VSL under the provisions of section 10(23FB) - HELD THAT:- As we have already allowed exemption to the assessee under section 10(23FB) of the Act, which was the basis for denying further exemption under section 10(34) and section 10(35). Considering the fact that we have already allowed relief to the assessee on the exemption under section 10(23FB) therefore, the basis on which the assessee was denied exemption under section 10(34) and section 10(35) has already been set aside therefore the discussion on the merit of these grounds of appeal have become academic, resultantly, they assessee is also allowed exemption under section 10(34) and 10(35) of the Act.
Levy interest u/s 234B - HELD THAT:- Considering the fact that we have already held that assessee is entitled for exemption under section 10(23FB), 10(34) and section 10(35) of the Act, therefore, we are in agreement with the submission of assessee that provision of section 234B of the Act are only applicable in case where in the financial year the assessee who is liable to pay advance tax under section 208 of the Act has failed to pay such tax or has paid advance tax lesser than the prescribed percentage, is only liable to pay levy of interest. Considering the fact that entire income of the assessee is held as exempt income, therefore, the assessee is not liable to pay interest under section 234 of the act. Therefore, we direct the assessing officer not to levy interest under section 234B of the Act. In the result this ground of appeal is allowed.
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2019 (8) TMI 1908
Condonation of inordinate delay of approximately 21 years in preferring the special leave petitions - sufficient cause has been shown to condone the huge delay or not - Entitlement to fair compensation for land acquisition - HELD THAT:- It is opined that as such the petitioners have miserably failed to make out a case to condone the huge delay of approximately 21 years. No sufficient cause has been shown to condone the huge delay of approximately 21 years. It is required to be noted that as such in the application itself it is submitted by the petitioners that there is an inordinate delay in approaching this Court.
Nothing is on record that after the impugned common judgment and order is passed by the High Court, the petitioners made any grievance/objection with respect to inadequacy of the compensation determined by the High Court. On the contrary, all the petitioners have accepted the compensation as per the judgment and award passed by the reference Court determining the compensation at the rate of Rs. 30/ per square yard. It appears that with respect to some of the land owners even the execution petitions are pending with respect to recovery of the differential amount of compensation, determined by the reference Court and the High Court as by the impugned common judgment and order the High Court has reduced the compensation from Rs. 30/ per sq. yard to Rs. 22/ per sq. yard - it can be said that for a period of approximately 21 years no grievance was made by the petitioners. Therefore, considering the terms of doctrine of acquiescence, the petitioners lose their right to complain. This principle is based on the doctrine of acquiescence implying that in such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and therefore has no right to complain against that alleged wrong.
It is the specific case on behalf of the respondents that the rate of allotment was based on the cost of acquisition and the amount spent on development, laying out the infrastructure. Therefore, if the cost of acquisition is increased now and the State/acquiring body is directed to pay enhanced compensation, in that case, it would be very difficult to recover the difference of amount of compensation from the allottees after decades of allotment. The acquiring body will have to make additional budgetary provision and as observed hereinabove it would be very difficult for the acquiring body to recover the difference of compensation from the allottees after so many years. All these aspects and the cascading effect on the State/acquiring body if they are directed to pay the additional compensation after number of years, have not been considered by this Court in the aforesaid decisions relied upon by the learned Advocate for the petitioners.
The condonation of huge delay of 7534, 7542 and 7886 days respectively in filing the special leave petitions is refused - SLP dismissed.
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2019 (8) TMI 1907
Jurisdiction of the State Government - Violation of Fundamental Rights - Contract of Personal Service - Restraint on Profession - Compulsory bonds to be executed for admission to post-graduate medical courses and super speciality courses - seeking quashing the compulsory bond conditions, as imposed in the super speciality courses by the States of Andhra Pradesh, Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Tamil Nadu, Telangana and West Bengal respectively - direction sought for returning the original mark-sheets, certificates and other documents retained by the respective State authorities after the completion of the concerned speciality courses.
Jurisdiction of the State Government - HELD THAT:- Entry 66 of List I of the 7th Schedule to the Constitution refers to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7th Schedule deals with education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds. Therefore, the States are free to legislate on the subject matter of medical bonds. Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature - The Notifications issued by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to postgraduate courses and super Speciality courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not covered by any Central Legislation - the submissions made on behalf of the Appellants that the States lacked competence to issue the notifications as the field is occupied are rejected.
Violation of Fundamental Rights - HELD THAT:- The right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis-à-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of the society guaranteed to them under Article 21 of the Constitution of India. The contention of the Appellants that their rights guaranteed under Article 21 of the Constitution of India have been violated is rejected.
Contract of Personal Service - HELD THAT:- Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds - the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act not agreed upon.
Restraint on Profession - HELD THAT:- The conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872.
The Writ Petitions and the Appeals deserve to be dismissed. Consequently, all the Doctors who have executed compulsory bonds shall be bound by the conditions contained therein - petition and appeal dismissed.
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