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2020 (9) TMI 1323
Violation of principles of natural justice - Before a quasi-judicial Tribunal, with no particular procedural norms, is oral hearing an inviolable facet of natural justice and fair hearing? - HELD THAT:- When it is silent—coupled with a legislative declaration that the tribunal concerned will have the powers to regulate its procedure—it lies in the tribunal's discretion. In the name of natural justice, a provision cannot be read into a statute, which the legislature has consciously avoided or omitted. It is, indeed, fallacious to insist that a court or a tribunal should follow throughout the life of a case the procedure it adopted at the beginning. Every case, has many stages. At some stages, the tribunal adjudicates issues which involve disputed questions of fact; at other stages it adjudicates disputed questions of law; still at some other stages, it adjudicates questions of both law and fact. At every stage, whether a party should be allowed to advance oral documents lies in the tribunal's discretion.
The petitioner's argument does not carry the conviction that if the Lokayukta has not framed Regulations, it cannot decide on its own the procedure it may adopt. Subordinate legislation, as the very nomenclature demonstrates, gets its life and legitimacy from the parent legislation. Once that parent legislation is clear, the subordinate legislation being silent, different, or even absent makes no difference. Framing of rules cannot be a condition precedent for a statutory provision to operate on its own—if it is otherwise enforceable.
It is difficult to appreciate that on a question of maintainability one cannot do justice unless he has the advantage of the counsel's oral articulation - Based on the gravity of the problem and intricacy of the issues, a tribunal may modulate its procedure. That apart, when a statute is clear, this court exercising its supervisory jurisdiction ought not to dictate to any tribunal the nitty-gritty of day-to-day proceedings.
Conclusion - i) The Lokayukta's decision to require written submissions instead of oral arguments was a proper exercise of discretion, especially under the prevailing circumstances of the pandemic. ii) For any tribunal or quasi-judicial body-for that matter any adjudicatory agency, courts not excluded-'maximisation of judicial time and celerity of disposal' are the watchwords.
Petition disposed off.
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2020 (9) TMI 1322
Scope of interference under Section 37 - direction by the Sole Arbitrator to DGG to furnish security equivalent to the sums involved - Section 17(1), and applicability of Order XXXIX, CPC - Applicability of Order XXXVIII Rule 5, CPC, to Section 9(1)(ii)(b), and Section 17(1)(ii)(b) of the 1996 Act - learned Sole Arbitrator has exceeded his jurisdiction by granting relief in excess of that sought by the respondents or not.
HELD THAT:- This Court, while exercising appellate jurisdiction, under Section 37 (2) of the 1996 Act, over the interim order of the learned Sole Arbitrator, is not expected, or even required, to delve deep into the facts of the case. Nor is it expected to substitute its own discretion, for the discretion of the learned Sole Arbitrator. If the exercise of discretion, by the learned Sole Arbitrator, suffers from patent illegality, or is otherwise unconscionable in law or on facts, interference may be justified; never otherwise.
Judicial intervention, with arbitral proceedings, has necessarily to be reduced to a bare minimum, under the 1996 Act. Applying this salutary principle, it is opined that, were this Court to set aside, or even modify, the direction, of the learned Sole Arbitrator, to DGG, to furnish security for the amount in dispute in the arbitration – which, clearly, is within the province of the jurisdiction of the learned Sole Arbitrator, conferred by Section 17(1)(ii)(b) – it would do violence to the entire ethos of the 1996 Act, and would militate against the avowed objective of the legislation itself.
Any interlocutory order, by the arbitrator, under Section 17, to furnish security, if preceded by adequate examination and appreciation of the facts, and the rival stands of the parties, should remain impervious to judicial interference. The Court is required to adopt a holistic, and comprehensive, view in such cases. Any attempt, by the Court, to vivisect, microscopically, the order of the arbitrator, to find flaws, would be entirely inappropriate. So long as the decision is informed by adequate application of mind, it should be allowed to prevail, especially as it is in the nature of an interlocutory direction, and is always subject to the final award, to be passed in the arbitral proceedings.
This Court is, in the present case, essentially concerned with whether a case for interference, with the impugned direction of the learned Sole Arbitrator, has, within the confines of Section 37 of the 1996 Act, been made out or not, and has, for the reasons adduced hereinbefore, answered the issue in the negative.
Conclusion - i) The Arbitrator's direction to DGG to furnish security was within jurisdiction under Section 17(1)(ii)(b) and necessary to balance equities. ii) The Arbitrator did not exceed jurisdiction or grant relief beyond requests, as the direction to secure the amount was justified to protect AGG's interests. iii) The principles of Order XXXVIII Rule 5, CPC, inform but do not bind the Arbitrator's discretion under Section 17, allowing for a balanced approach.
Appeal dismissed.
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2020 (9) TMI 1321
Deemed dividend addition u/s 2(22)(e) - amounts transferred between the appellant and its sister concern - HELD THAT:- Mere fact that the assessee having met its business exigency of funds requirement coming from its group concerns by way of a running account does not attract deemed dividend u/s 2(22)(e) of the Act. Case law in Dishman Pharmaceuticals and Chemicals Ltd. and Pradip Kumar Malhotra [2011 (8) TMI 16 - CALCUTTA HIGH COURT] and decision Shri Amit Kumar Jain [2019 (6) TMI 743 - ITAT DELHI] hold that the impugned deeming fiction does not come into play in the case of a running account involving group entities meeting day to day business exigency(ies) with each other’s funds. We therefore hold that both the learned lower authorities have erred in making the impugned addition in assessee’s hands.
We also sought now from both the parties as to whether these two entities satisfy statutory requirements of stake holding or not. We are informed that these two entities i.e. the assessee herein the M/s Bhudia Agencies Pvt. Ltd. and M/s Republic Tractor Motor Pvt. Ltd. have common shareholders only. Assessee appeal allowed.
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2020 (9) TMI 1320
CENVAT Credit - duty paying invoices - improper invoices to avail CENVAT Credit - contravention of the provisions of Rule 11(2) of CER, 2002 read with Rule 9(2) of CCR, 2004 - power of Commissioner (Appeals) to remand the case - Revenue Neutrality - HELD THAT:- The ld. Commissioner (Appeals) has failed to exercise the jurisdiction vested in him judiciously as noticed hereinabove. Further, allowing of appeal by way of remand is bad in law. Ld. Commissioner (Appeals) was required to make such further inquiry and obtain explanation and details as deemed fit, and should have passed a reasoned order in accordance with law either allowing or dismissing the appeal - From the plain reading of Rule 9(2) with the proviso, it is evident that legislature has taken into account difficulty that may arise for some discrepancy in the documents on the basis of which, credit has been taken. To alleviate such difficulty and to facilitate the assessee, power has been conferred on the jurisdictional Deputy/Asstt. Commissioner that he may enquire into documents, etc. and on being satisfied that the goods or services covered by the said documents have been received and accounted for in the books of account of the receiver, he may allow the cenvat credit.
Power of Commissioner (Appeals) to remand the case - HELD THAT:- The Commissioner (Appeals) has got no powers to order for reinvestigation. Further, the Commissioner (Appeals), being a creature of statute, has no powers to extend the limitation prescribed in the Act for issue of show cause notice. Further, it is found that an order allowing to take cenvat credit under the proviso to Rule 9(2) of CCR is not an adjudication order and accordingly, the monetary limit prescribed for an adjudication order is not applicable. Admittedly, there is no cause to issue notice. Further, the Commissioner (Appeals) has got no powers to remand in the facts and circumstances. Further, duty paid nature of the goods/inputs in question has not been doubted. Evidently, there is only a technical objection raised by the Preventive Team.
Revenue Neutrality - HELD THAT:- Rule 16 (1) of Central Excise Rules provides that where any goods on which duty has been paid at the time of removal thereof, or brought to any factory for being re-made, refined, reconditioned, etc., the assessee shall state the particulars of such Rule in his records and shall be entitled to take cenvat credit of the duty paid, as such goods are received as inputs under the Cenvat Credit Rules, and utilise this credit, according to the said Rules. Thus, under the facts and circumstances, there is no violation of the provisions of Rule 16 of Central Excise Rules. Further, the position is wholly Revenue neutral as the same amount of duty is available as cenvat credit even if the procedure under Rule 16 of Central Excise Rules is followed - there is no error in the order-in-original passed by the Dy. Commissioner allowing cenvat credit to the assessee –Rajasthan Antibiotics.
Further, taking notice that under Notification No.71/71-CE, the assessee is entitled to a set off of the duty paid on the intermediate products from the final products, it was held that the benefit of the said notification cannot be denied on the technical ground of non-compliance with Rule 56A procedure when the assessee contested the correctness of the classification and dutiability of the intermediate products, observing that the assessee could not have ordinarily complied with the procedure under Rule 56A (Proforma GATI Procedure).
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 1318
Locus to file the writ petition - admission of the students to the five year integrated B.A.LL.B. (Hons.) Programme 2020-2021 - Respondent No. 1 being founder member of Consortium of National Law Universities, a registered society, is bound by its Bye-Laws and was obliged to admit the students for integrated B.A.LL.B. (Hons.) Programme through CLAT 2020 - online home proctored examination as proposed by notification dated 03.09.2020, lacks transparency or not - retest was marred by malpractices or not.
Whether the Petitioners have locus to file the writ petition? - HELD THAT:- The Memorandum of Association of Consortium of National Law Universities, which is a registered society under Karnataka Societies Registration Act, 1960 registered on 26.03.2019 contains a list of Initial Members Subscribers of the Consortium in which name of Petitioner No. 2 was mentioned as Member Subscriber No. 1. Petitioner No. 2 being Vice-Chancellor of Respondent No. 1 became the ex-officio Secretary Treasurer of the Society, his details are also mentioned in paragraph 7 of the Memorandum. A person, who has worked as Vice-chancellor of Respondent No. 1 and was also member of Consortium, which is entrusted to conduct CLAT, he is fully competent to espouse the cause of education by means of the writ petition - the objection of the Respondent that Petitioners have no locus to file the writ petition is rejected.
Whether the admission notification dated 03.09.2020 by Respondent No. 1 could have been issued only after recommendations to that effect by the Academic Council, which is the statutory authority under the Act, 1986 for admission of the students to the five year integrated B.A.LL.B. (Hons.) Programme 2020-2021? - HELD THAT:- There can be no dispute that Executive Council is the Chief Executive Body of the school and the administration, management and control of the school is vested in the Executive Council and in the administration, right to admit the students is included but the Statute has to be further looked into to find out as to whether there are any other statutory provisions to regulate the admission of students or there is any other authority of the school, which is vested with the power to take decision regarding admission of the students.
Admissions to the school, thus, were contemplated to be under the control of Academic Council and the appointment of committees was with the purpose to monitor and conduct the admission of the school. When the Act was enacted in 1986, no procedure was in place regarding admission and the Statute empowered the Executive Council to appoint committees for admission to the school. By virtue of Clause 14(16) with regard to appointment of committees for admission to the school, the Academic Council was to perform "all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of the Act". Thus, the above statutory provision gave all incidental power to the Academic Council in relation to the admission.
Respondent No. 1 was required by the Statute to obtain recommendation of Academic Council before proceeding to hold NLAT by issuing admission notification dated 03.09.2020 - admission notification dated 03.09.2020 issued by Respondent No. 1 could not have been issued without obtaining the recommendation to this effect by the Academic Council. Admission notification dated 03.09.2020 having been issued without recommendation of Academic Council is not in accordance with the provisions of Act, 1986 and is unsustainable.
Whether the Respondent No. 1 being founder member of Consortium of National Law Universities, a registered society, is bound by its Bye-Laws and was obliged to admit the students for integrated B.A.LL.B. (Hons.) Programme through CLAT 2020? - HELD THAT:- As provided by UGC guidelines which guidelines have been continued by subsequent guidelines dated 06.07.2020, the UGC expected the Universities to carry on some amendments in their academic calendar for the session 2020-21. The Universities are not powerless to modify their Academic Calendar looking to the pandemic. The Academic year 2020-21 is not a normal academic year in which Universities are expected to carry on their teaching and other activities in normal mode and manner. The Respondent No. 1 University could have very well found out ways and means to start the academic Under-Graduate Law course even if it starts in mid of October 2020 after conduct of the CLAT on 28.09.2020.
UGC in its guidelines dated 29.04.2020 has already asked all the Universities to modify their academic calendar for the academic year 2020-21. The UGC being the body to maintain standard of education in the entire country and having contemplated for suitable amending the academic year, "Doctrine of Necessity" does not arise. It is concluded that being members of the Consortium Respondent No. 1 ought not to have proceeded with holding a separate test namely "NLAT" nor the academic year 2020-21 be required to be declared as "zero-year" even if the course starts in the mid of October, 2020.
Whether online home proctored examination as proposed by notification dated 03.09.2020, lacks transparency, was against the very concept of fair examination and violative of the rights of the students Under Article 14 of the Constitution? - HELD THAT:- The Respondent No. 2 had categorically taken the stand on behalf of the CLAT that online test at home with technological measures cannot ensure transparency and the test will be completely compromised and may even be manipulated by participants and coaching centres. There was no reason for change of mind by Respondent No. 2 within a week. Affidavit was sworn on 25.08.2020 by Respondent No. 2 and on 03.09.2020 after a week, notification was issued for conducting NLAT permitting participants to join online examination sitting at their home. When something was not to be permitted, when home based online test could not have been permitted for CLAT-2020, the same test can also not be permitted for NLAT-2020 - there are substance in the submissions of the Petitioner that permitting of home based online test could not have ensured transparency, fairness and integrity of the examination especially when the test was to be conducted for entrance into a premier Law University of the country.
Thus, home based online examination as proposed by the Respondent No. 1 University for NLAT-2020-21 could not be held to be a test which was able to maintain transparency and integrity of the examination. The short notice and technological requirements insisted by the University deprived a large number of students to participate in the test violating their rights Under Article 14 of the Constitution of India.
Whether NLAT held on 12.09.2020 with retest on 14.09.2020 was marred by malpractices and deserves to be set aside? - HELD THAT:- It is not necessary for this Court to enter into various materials referred to by the Petitioners and the reports and to decide as to whether malpractices were actually adopted in the examination or not. Respondent No. 1 being premier University, there are no doubt that it must have taken all necessary precautions to avoid any malpractices and cheating in the examination - the University has also filed a complaint of Cyber Crime which may be inquired in accordance with law - thus, Admission notification dated 03.09.2020 issued by Respondent No. 1 was not in accordance with law and deserves to be set aside.
Conclusion - (i) The notice for admission to the five year integrated B.A.LL.B. (Hons.) programme 2020-21 dated 03.09.2020 Annexure-P 14 as well as Press Release on NLSIU admission 2020-21 dated 04.09.2020 Annexure-P 15 are quashed. (ii) The Respondent No. 3 is directed to conduct the CLAT-2020 examination on 28.09.2020 taking all precautions and care for health of the students after following the Standard Operating Procedures (SOPs) of the Ministry of Health and Family Welfare (MoHFW) and Ministry of Human Resource Development (MHRD). (iii) The Respondent No. 3 shall also ensure that the entire process of declaration of the result be completed as early as possible to enable the Respondent No. 1 and other National Law Universities to start their course by the mid of October-2020. (iv) The Respondent No. 1 shall also complete the admission of B.A.LL.B. (Hons.) programme 2020-21 on the basis of the result of CLAT-2020. (v) The Respondent No. 3 may take decision at an early date restoring the status of Respondent No. 2 as the Secretary-Treasurer of the Consortium as well as restoring the Secretariat of the Consortium as to NLSIU, keeping in mind that scheduled exam of CLAT-2020 on 28.09.2020 is not hampered in any manner.
SLP disposed off.
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2020 (9) TMI 1317
Dismissal of an appeal preferred under Section 44 of the Real Estate Act for non-compliance with a pre-deposit order passed by RERA Appellate Tribunal - HELD THAT:- Prima facie all ingredients of promotership of the Appellant are satisfied in the present case and there is no reason why its appeal before the Appellate Tribunal should not be treated as an appeal filed by a promoter.
Whether the original complaint before the adjudicating officer was premature and whether damages/compensation awarded by the adjudicating officer were within his jurisdiction, are but matters of merit in the appeal. These matters, even if some of them may go to the root of the order impugned in the appeal, do not call for dispension of pre-deposit under the proviso to sub-section (5) of Section 43, which is mandatory.
There is, in the premises, no infirmity in the impugned orders passed by the Appellate Tribunal. The orders do not give rise to any substantial question of law for the consideration of this court. The Second Appeal is, accordingly, dismissed.
Appeal dismissed.
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2020 (9) TMI 1316
Addition u/s 68 - unexplained cash credit - HELD THAT:- We see no reasons to take any other view of the matter than the view so taken by M/s Anand Enterprises Ltd [2018 (9) TMI 1779 - ITAT KOLKATA] wherein hold that the ld. AO had erroneously invoked the provisions of section 68 to the facts of the instant case, which, in our considered opinion, are not at all applicable herein. This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties.
In the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash. Hence we hold that provision of section 68 of the Act are not applicable in the instant case and accordingly the entire addition deserves to be deleted which has rightly been done by the CIT(A) which does not require any interference. Appeal of the Revenue is dismissed.
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2020 (9) TMI 1315
Recovery of interest, penalty and recovery expenses as arrears of land revenue - failure of the Appellant to handover seven tenements to government nominees as required under the conditions of exemption granted Under Sections 20 and 21 of the Urban Land (Ceiling and Regulation) Act, 1976 - HELD THAT:- The plea of the Appellant that the liability under the impugned demand rested upon Respondent Nos. 2 to 4 alone in view of the development agreement between the parties, and that the authorities had made any direct communication with the said Respondents also does not merit any consideration in view of the facts of the case coupled with the provisions of the Act. Subsequent to the grant of exemption, the Appellant entered into a development agreement with Respondent Nos. 2 to 4 as early as on 29.08.1988 describing himself as the owner and also handed over the title deeds of the property - The question of any estoppel, therefore, does not arise. Shri Patil is therefore right in his submission that any dispute between the Appellant and Respondents Nos. 2 to 4 under the development agreement between them falls in the realm of a private dispute and does not detract from the exclusive liability of the Appellant under the order of exemption.
The Appellant having failed to hand over the remaining seven tenements, the impugned demand dated 15.10.2005 then came to be raised by Respondent No. 1 as being the current market value rate of the remaining seven tenements pursuant to the undertaking of the Appellant dated 16.05.2005. This was preceded by repeated request to the Appellant for handing over seven tenements.
Whether the competent authority under the Act possesses the power to recover the market value of seven tenements for failure to hand over possession in terms of the order of exemption? - HELD THAT:- The undertaking dated 16.05.2005 by the Appellant, to pay the price of the same in the event of the failure to do so, in our opinion cannot expand the statutory powers of the competent authority under the provisions of Sections 20 and 21 of the Act. The Appellant has justifiably raised a pure question of law before us for the first time, which was acknowledged not to have been raised earlier either before the appellate authority or the High Court Under Section 38(4) of the Act.
It being a pure question of law, the facts being undisputed, there are no reason not to allow the Appellant to raise the same here for the first time. The competent authority under the Act could have certainly withdrawn the exemption in the event of breach along with all its attended consequences. Failure to do so did not deprive the statutory authority of its powers to proceed appropriately under the Act. But the competent authority being a creature of the statute Under Section 2(d) of the Act, cannot act beyond its statutory jurisdiction and the exercise of its powers shall remain circumscribed by the provisions of the Act. Any undertaking by the Appellant cannot expand the statutory jurisdiction of the competent authority. The demand for the market value of the remaining seven tenements, falling outside the purview of the Act, cannot be construed as money due to the Government so as to vest in it the nature of an arrears of land revenue recoverable Under Section 265 of the Maharashtra Land Revenue Code, 1966.
The order of the High Court is set aside - The appeal stands allowed.
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2020 (9) TMI 1314
Dishonour of Cheque - non-registered partnership-deed - vicarious liability of applicant, not a working partner - HELD THAT:- It is noticed that the complaint does not reveal specific averment against the present applicant as to how he was responsible and what particular act he has committed. Admittedly, the partnership-deed is not registered under the provisions of section 69(2) of the Partnership Act. Clause (9) of the partnership-deed makes it crystal clear that the applicant is not a working partner.
In the instant case also, there are no specific averments in the complaint with regard to the fact that the applicant was a working partner. On the contrary, clause (9) of the Deed categorically indicates that the applicant was not a working partner.
In the case in hand also, there are no specific averments in the complaint u/s.141 that at the time the offence was committed, the person accused was in charge of the conduct of business of the firm and responsible for issuance of the disputed cheque. Merely because the applicant was the partner in the partnership-firm is not sufficient to make him liable for offence u/s 141 of the N.I. Act, particularly when no specific role is attributed to the applicant in the complaint.
The purpose of Section 141 of the NI Act appears to be that a person who merely appears to be a director of a company or partner of a partnership firm, cannot be fastened with criminal liability for an offence under section 138 of the NI Act unless it is shown that he was involved in day-today affairs of the company/partnership firm and was responsible to the company/partnership firm. So far as the issuance of process order is concerned, it is not a well reasoned order and no prima facie case is made out by the complainant against the present applicant and therefore it needs to be quashed and set aside.
There are no specific and sufficient allegations against the applicant that he was looking after and responsible for day-to-day affairs of the firm. The allegations made in the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the present applicant i.e. accused no. 2. In that view of the matter, contention of the applicant as regards continuing the case before the learned JMFC would be an abuse of the process of court, is liable to be accepted - Application allowed.
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2020 (9) TMI 1313
Rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure - no civil court had jurisdiction to entertain any suit or application - HELD THAT:- One can understand the Applicant’s apprehension; but a clear answer to this dreaded predicament is making of an application for framing a preliminary issue of jurisdiction questioning the status of the suit property as agricultural land, and requiring the court to read evidence and hear the parties on that preliminary issue and dismiss the suit, if the suit property is not found to be agricultural. It is not really necessary in such a case to go to trial on all issues, if the defendant bank is right on the preliminary issue.
There are no merit in the challenge to the impugned order. Civil Revision Application is, in the premises, dismissed.
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2020 (9) TMI 1312
Approval of resolution plan for revival of the corporate Debtor - section 30(6) of I&B Code, 2016 - HELD THAT:- The Resolution Plan, which was approved by the Committee of Creditors on 21.08.2020 for Mr. Sanjay Punglia Resolution Applicant along with co-applicants viz., Mr. Abhishek Balar and Mr. Sudeep Dasani, confirm all the requisite conditions and reasonably satisfy all the stake holders of Corporate Debtor and it was approved with requisite majority. Therefore, the said Resolution Plan is a fit to be approved, under Section 31(1) of the IBC, 2016.
Resolution Plan approved - application disposed off.
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2020 (9) TMI 1311
Dismissal of an appeal by ITAT for default or for non-prosecution - HELD THAT:- A reading of Ext.P4 would clearly show that the Appellate Tribunal has not considered Ext.P3 appeal on merits and the only reason for dismissing it is stated to be for non-prosecution. The appellant filed Ext.P5 Miscellaneous Petition seeking to set aside the ex parte order for restoring the appeal back to file. But the same was also dismissed by the Tribunal as per Ext.P6 order, for the reason that the same is filed beyond time.
In the light of the binding judgment of the Apex Court [2014 (11) TMI 531 - SUPREME COURT] and the provisions contained in Section 254 of the Income Tax Act, 1961 and Rule 24 of the Income Tax (Appellate Tribunal)Rules, 1963, the writ appeal and the writ petition are allowed. We hold that Ext.P4 order passed by the Appellate Tribunal is not issued in accordance with law, and the same is set aside. Since Ext.P4 order is not an order passed on merits, there is no requirement of the appellant approaching the Tribunal for setting aside the ex parte order and restoration of the appeal, as per the Proviso to Rule 24.
Ext.P6 order which is consequential, is also set aside. The Tribunal is directed to reconsider the appeal Ext.P3 on merits and dispose of the same in the manner stipulated by the Statute. The parties shall bear their respective costs.
We take note of the fact that the order of the First Appellate Authority was passed on 31.01.2014 and that of the Tribunal was passed on 26.06.2014, and the appellant chose to prefer an application to set aside the ex parte order only after five years, on 22.11.2019. Even though the appeal and the writ petition filed by the appellant is allowed, we are of the opinion that there is inordinate delay in challenging the order of the Appellate Tribunal, which all the same is to be treated as non est. The appeal and the writ petition is hence allowed, subject to the appellant paying a sum of ₹ 5,000/- (Rupees Five Thousand only) towards costs to the Kerala State Mediation and Conciliation Centre and producing a copy of the receipt within a period of one month before the Tribunal.
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2020 (9) TMI 1310
Territorial Jurisdiction - Transfer of appeal pending before the High Court of Meghalaya to the Gauhati High Court - Meghalaya High Court did not have, at that point of time, an available Division Bench to dispose of the appeal - HELD THAT:- Having heard learned counsel for the parties, it is clear that the learned Single Judge’s judgment dated 16.07.2015 is a detailed judgment which also referred to the learned Advocate General’s contentions.
This being so, the impugned judgment is set aside and the appeal is allowed.
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2020 (9) TMI 1309
Assessment u/s. 147 or 153C - addition on account of fees paid for the studies of the daughter of the assessee - documents as seized during the course of search and seizure proceedings - HELD THAT:- It is incorrect to say that no documents were seized during the course of search and seizure proceedings.
Documents as used during the course of the assessment proceedings of the assessee belong to the assessee and, therefore, the AO should have framed assessment u/s. 153 C of the Act.
As identical set of facts were there in the case of Girish Chand Sharma [2018 (11) TMI 1736 - ITAT DELHI] wherein similar reasoning were given for reopening of the assessment wherein held any document found during the course of the search makes the assessee “other person” therefore the correct section for initiation of any proceeding against the assessee is section 153C.
Thus we hold the notice issued u/s. 148 and the assessment framed u/s. 147 of the Act is void-ab-initio. Decided in favour of assessee.
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2020 (9) TMI 1308
Validity of assessment against non-existent company - assessee company was merged on the date notice was issued - HELD THAT:- The assessee company was not in existence as on the dated of passing of the assessment order. Hence the assessment order passed on a non-existent company is bad in law. We are holding so by respectfully following the judgement of PCIT vs. Maruti Suzuki India Ltd. [2019 (7) TMI 1449 - SUPREME COURT] assessment itself is bad in law as it was made on a nonexistent company - Decided in favour of assessee.
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2020 (9) TMI 1307
Seeking grant of (first) bail - it is alleged that petitioner has laid a scathing attack citing political vengeance for false implication of the petitioner in this case - HELD THAT:- A perusal of the records is in itself illustrative how the deceased having been illegally apprehended within the jurisdiction of District Mohali, at no point of time over this long period was ever produced before the Judicial Magistrate and it was only before an Executive Magistrate in another District in Gurdaspur he is alleged to have been produced on 14.12.1991 before the SDM from where he is stated to have escaped from huge posse of police and paramilitary forces; rather rightly strengthens the belief of the complainant and a rationale person that it was with a preconceived plan the entire gamut was played to facilitate easy elimination of Balwant Singh Multani. Prior thereto the police admits being in custody of the deceased and therefore a heavy onus lay on it to remove this needle of suspicion which it has not been prima-facie able to succeed.
In the case of SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER [2020 (1) TMI 1193 - SUPREME COURT], the Supreme Court has held that an order of anticipatory bail does not in any manner limit or restrict the rights or the duties of the police/investigating agency to investigate into the charges against a person who seeks and is granted pre-arrest bail.
More so, a million dollar question arises whether under the garb of interim bail/anticipatory bail, the hands of the investigating agency can be tied so as to frustrate its endeavours to unearth the truth and reach into the circumstances unfolding into the manner of the crime. If it would have been the intention of the legislature then no crime in this world could have been detected and the culprits would have gone scotfree - In JAPANI SAHOO VERSUS CHANDRA SEKHAR MOHANTY [2007 (7) TMI 572 - SUPREME COURT], the Supreme Court of India has held that general rule of criminal justice is that a crime never dies.
Applying the same very ratio to the instant case, a look at the complaint and undisplaced facts before this Court, shows that since the day of his disappearance and prior thereto the family had been making every conceivable effort in initiating judicial process and which rather had remained in oblivion to the constitutional rights of the deceased’s family, are matters which certainly are of much relevance and substantiate the plea of State the unbridled powers of petitioner. Even in the innumerable cases that one experiences in life, shows that for one reason or the other, be it political or otherwise, many of the crimes remain buried for a period of time and it is with passage of time the same are unearthed and therefore, does not discourage the investigating agency from laying off its hands from such grave crimes against humanity.
Since it is at this juncture, the investigating agency has woken up and gathered courage to investigate its own officer and therefore, the vital pieces of evidence which would come handy in leading to various leads would inch towards unraveling this puzzle which too has baffled the citizenry who are looking upon the justice system as a last resort to get justice. Even otherwise, it is a well settled proposition of law that provisions of Section 438 Cr.P.C. are to be sparingly used. In the light of the seriousness of offences that have come about there being every likelihood of petitioner stifling fair investigations and trial and for which custodial interrogation of the petitioner is very much essential to piece together this unfortunate incident, necessitates dismissal of the instant bail application.
Bail application dismissed.
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2020 (9) TMI 1306
Seeking grant of bail - smuggling - Heroin - charge sheet was not filed within the statutory period of 60 days - petitioner having been prevented from filing an application seeking the default bail, for the reason, he was not represented by a lawyer - HELD THAT:- In the present case, the petitioner could not file an application seeking indefeasible right to bail under Section 167(2) CrPC on account of inaction on the part of the learned Special Court in ensuring that the petitioner was represented by a counsel during the period of remand as well and that he was informed of the said right.
Hon'ble Supreme Court has repeatedly emphasized the bounden duty of the Trial Courts to inform the accused of his right to seek default bail. In the decision reported as Rakesh Kumar Paul Vs. State of Assam [2017 (8) TMI 1526 - SUPREME COURT], expounding the duty of the Courts in providing free legal assistance to the accused as also informing him of his right to seek the statutory bail, held the petitioner had satisfied all the requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail - The facts of the present case are undoubtedly distinguishable from the facts in Rakesh Kumar Paul as between the period of 4th February, 2020 to 13th February, 2020, the petitioner having not been informed about his indefeasible right to default bail, he could not seek the same by filing an application and as held in a catena of decisions of the Hon'ble Supreme Court, unless the accused applies for the default bail during the said period, the accused will not be entitled to the same as a matter of right.
Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal Vs. State [1989 (9) TMI 408 - DELHI HIGH COURT], it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.
In the alternative petitioner also seeks bail on merits. The petitioner was apprehended by a team of Narcotics Squad on 6th December, 2019 pursuant to an information received that the petitioner along with the co-accused was supplying smack in the area of Sultanpuri and Wazirpur J.J. colony and would come for the supply at about 6.30-7 pm. On the pointing out of the informer, the petitioner and the co-accused were apprehended and a notice under Section 50 of the NDPS Act was served on the petitioner and the co-accused and they were informed about their right to be examined before a Gazetted Officer and Magistrate. Despite refusal of the petitioner and the co-accused, ACP (Operations) was present when the search was conducted and on the search of the petitioner, 50 gms of Heroin was recovered and another 50 gms of Heroin was recovered from the co-accused. Two samples of 5 gms each were drawn and kept in separate pullandas. The samples and the remaining contraband were sealed and after performing the necessary codal formalities, the same were deposited in the Malkhana.
Considering the nature of drug/Heroin allegedly recovered from the petitioner and no procedural infirmity having been pointed out, this Court finds no ground to grant bail to the petitioner on merits as well.
Petition is dismissed.
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2020 (9) TMI 1305
Seeking transfer of Criminal cases pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi - lack of territorial jurisdiction - cause of action - HELD THAT:- Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal Courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively in Clauses (g) and (h) of Section 2 of the Code.
Apart from Sections 177 to 184, which lay down in elaborate detail, the Rules relating to jurisdiction, Chapter XIII of the Code also contains a few other sections. Section 185 empowers the State Government to order any case or class of cases committed for trial in any district, to be tried in any Sessions division. Section 186 empowers the High Court, in case where 2 or more courts have taken cognizance of the same offence and a question as to which of them should inquire into or try the offence has arisen, to decide the district where the inquiry or trial shall take place. Section 187 speaks of the powers of the Magistrate, in case where a person within his local jurisdiction, has committed an offence outside his jurisdiction, but the same cannot be inquired into or tried within such jurisdiction. Sections 188 and 189 deal with offences committed outside India.
Clause (a) of Section 26 makes the provisions contained therein, subject to the other provisions of the Code. Therefore, a question arose before this Court in the State of Uttar Pradesh v. Sabir Ali [1964 (3) TMI 137 - SUPREME COURT] as to whether a conviction and punishment handed over by a Magistrate of first class for an offence under the Uttar Pradesh Private Forest Act, 1948 were void, in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences under the Act triable only by a Magistrate of second or third class. Though the entire trial in that case took place before a Magistrate of second class, he was conferred with the powers of a Magistrate of first class, before he pronounced the Judgment. This Court held that the proceedings were void Under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time). It is relevant to note that Section 461(l) of the Code of 1973 is in pari materia with Section 530(p) of the Code of 1898.
What is now Clause (a) of Section 26 of the Code of 1973, is what was Section 28 of the Code of 1898. The only difference between the two is that Section 28 of the Code of 1898 referred to the eighth column of the second schedule, but Section 26(a) of the Code of 1973 refers to the first schedule - Similarly, Clause (b) of Section 26 of the Code of 1973 is nothing but what was Section 29 of the Code of 1898.
It is possible to take a view that the words "tries an offence" are more appropriate than the words "tries an offender" in Section 461(l). This is because, lack of jurisdiction to try an offence cannot be cured by Section 462 and hence Section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of Section 462, provided there is no other bar for the court to try the said offender (such as in Section 27). But Section 461(l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.
The upshot of the discussion is (i) that the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various Rules enunciated in Sections 177 to 184 of the Code and (iii) that these questions may have to be raised before the court trying the offence and such court is bound to consider the same.
As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, atleast as of now. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed.
Accordingly, transfer petitions are dismissed.
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2020 (9) TMI 1304
Ex-parte interim order passed by WTM - illegal gains made using unpublished price sensitive information - directing the Appellant to deposit a sum in an escrow account in a Nationalised Bank towards - WTM further directed the Banks to freeze all debits to the extent of the above amount till such time the escrow account is opened and the amount is transferred and directed the depositories to suspend all debits and, therefore, restrained the Appellants from disposing or alienating any assets or properties till such time the amount is credited in the escrow account - Appellant contented that there was no urgency in passing an ex-parte order with regard to the trades done by the Appellants
HELD THAT: In the instant case, we do not find that the matter is one of extreme urgency which requires passing of an ex-parte interim order. We find that the trades were done in the year 2017. Nothing has come on record as to when the Respondent became aware of these transactions. However, we find that the proceedings were initiated in February, 2019 which continued till 11th March, 2020 and, thereafter, it took the Respondents another 4 months to pass the impugned order.
This by itself indicates that there was no extreme urgency in passing the impugned order. We, therefore, are of the opinion that merely by arriving at a prima facie case that the Appellants were an insider as defined under the PIT Regulations, 2015 cannot be made the sole basis for passing the impugned order without considering the balance of convenience or irreparable injury.
Only reason given for passing the interim order has been provided in para 34 of the impugned order namely that the illegal gains should be impounded otherwise it would result in irreparable injury to the interest of the securities market and investors. In our view, illegal gains are yet to be adjudicated and, therefore, in the absence of adjudication it will not be proper to impound the so called illegal gains especially when there is no assertion that the Appellants are disposing of the property in question or they are obstructing or delaying the proceedings.
The impugned order in so far as it relates to the Appellants cannot be sustained and is quashed at the admission stage itself without calling for a reply except the show cause notice. The Appeal is allowed and the Misc. Application are accordingly disposed of.
We further direct the Appellants to file a reply to the show cause notice on or before 7th October, 2020. The Respondent will thereafter decide the matter finally after giving an opportunity of hearing to the Appellants either through physical hearing or through video conference within 6 months thereafter.
During the interim period, in order to safe guard the interest of the investors in the securities market and also to protect the integrity of the securities market, we direct the Appellants to provide a fixed deposit of Rs 2,60,93,085.85 in the name of SEBI for a period of one year, within two weeks from today. This fixed deposit receipt will be kept in the safe custody with the respondent and will not be encashed till three months after the passing of the final order by the respondent.
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2020 (9) TMI 1303
Levy of service tax - renting of immovable property service/mandap keeper service - eligibility for Mega Exemption Notification No.25/2012 dated 20.06.2012 - time limitation - penalty - HELD THAT:- The issue is no longer res integra. The Division Bench of the Madras High Court had already decided the issue in the decision GV. MATHESWARAN VERSUS THE UNION OF INDIA AND OTHERS [2015 (3) TMI 391 - MADRAS HIGH COURT]. After upholding the validity of Section 65(105)(zzzz) of the Act, in Paragraph No.56, the Hon'ble Division Bench observed that it is open to the local body to pass on the burden to the recipient of the service.
When the Division Bench of the Madras High Court has already held that the local bodies are also liable to pay service tax for rendering “renting of immovable properties” service/mandap keeper services etc., then, it is not required to go into the issue once again. Judicial discipline demands to respectfully follow these binding precedents.
Whether the impugned demand are hit by limitation? - HELD THAT:- Admittedly, the petitioners did not register with the respondent department immediately. From the date of registration as an assessee, the petitioner is liable to pay service tax. If limitation is computed, the impugned demands are well within time - this issue had been specifically dealt with by the Division Bench of the High Court of Judicature of Chhattisgarh in PAWAN ENGINEERING WORKS VERSUS COMMISSIONER OF CUSTOM AND CENTRAL EXCISE & SERVICE TAX, RAIPUR [2019 (11) TMI 1206 - CHATTISGARH HIGH COURT] where it was held that non-registration of the appellant, in the given circumstances, definitely will amount to suppression of the relevant facts, which came to the notice of the Department, only later, on the basis of some intelligence gathered by the Preventive Officers of the Central Excise. This being the position, it squarely comes within the purview of 'sub-Clause (d)' under the proviso to Section 73(1) of the Finance Act, 1994 and hence it was open for the Department to have invoked the extended period of 'five years' for issuing the show cause notice.
Thus, in the present case, the impugned demands are within limitation.
Levy of penalty - HELD THAT:- Since the local bodies are discharging statutory obligation by way of providing public service without any profit making intent and amount so collected is eventually spent for the welfare of the public, there cannot be any malafide intention to evade payment of service tax. It is for this reason, the Tribunals throughout India have been taking a consistent stand in directing waiver of penalty. The respondent authorities are bound by the view taken by the jurisdictional Tribunal. Therefore, levying of penalty on the local body is clearly not warranted and they are accordingly set aside.
Petition allowed in part.
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