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Case Laws - Income Tax
- 2024 (10) TMI 1488
Penalty imposed u/s 270A when the rectification application itself was pending - while computing the tax liability of the petitioner, the AO did not give credit of the TDS and charged interest for alleged non-payment of taxes - case of the petitioner is that since non-grant of the TDS was a mistake apparent on a face of the record , the petitioner made an application under Section 154 seeking correction of this apparent mistake - due to Technical difficulties delayed the uploading of the application, but it was eventually filed on 27 April 2022 HELD THAT:- The petitioner would be correct in his contention that in view of the subsequent devel....... + More
- 2024 (10) TMI 1487
Penalty u/s 270AA - assessee s case was one of under-reporting of income in consequence of mis-reporting - HELD THAT:- The controversy relates to the income and expenditure booked on account of interest accrued and payable. The petitioner had availed certain interest-bearing loans, and at the same time, had also advanced unsecured loans. AO found that the interest payable in respect of certain loans advanced by the assessee was higher than the interest at which the funds were arranged. For the aforesaid reason, the assessee had made an addition being on account of the negative spread of interest. Prima facie, this case would not be one of mi....... + More
- 2024 (10) TMI 1486
Jurisdiction of Assessment Unit, Income Tax to impose penalty u/s 271 (1) (c) - whether Petitioner has concealed its income? - TP adjustment in respect of payment of royalty - payment of management fees afresh in the light of the compliance report, modified income-tax return, and the APA. HELD THAT:- We find substance in the contention of the Petitioner that, in the facts and circumstances of the case, the Respondents have no jurisdiction to initiate the impugned penalty proceedings and more particularly considering the fact that although the final Assessment Order was passed on 30 August 2018 for the Assessment Year 2013-2014, the Petitione....... + More
- 2024 (10) TMI 1485
Notice u/s 143(2) - Jurisdiction of AO to issue notices - Authority to issue notices u/s 143(2) - notice u/s 143 (2) of the Act has been issued by the ACIT/ DCIT (International Taxation), Circle-1(1)(1), Delhi HELD THAT:- A plain reading of Section 143 (2) of the Act clearly indicates that either of the two authorities either the AO or the prescribed income-tax authority can issue a notice u/s 143 (2) of the Act. The expression as the case may be also indicates the same. Revenue also referred to Section 12E of the Income-Tax Rules, 1962 (hereafter the Rules) which expressly provides that the Central Board of Direct Taxes (hereafter the CBDT)....... + More
- 2024 (10) TMI 1484
Writ petition filled beyond the statutory limitation period - violation of principles of natural justice as the personal hearing had not been given to the appellant dealer - HELD THAT:- Today when the matter is taken up for hearing Additional Government Pleader appearing for the respondent Revenue has produced the original file, where we were able to find that, the notice of personal hearing dated 11.02.2019 had been issued by the Revenue which was received by the appellant dealer on 13.02.2019 by putting the seal as well as signature of the appellant dealer. That apart, on 19.02.2019, a manuscript reply also had been sent by the appellant d....... + More
- 2024 (10) TMI 1483
Foreign Tax Credit [FTC] claim r/w Article 24 of India-UK Tax Treaty ( DTAA ) - HELD THAT:- This Court, by following the judgment of G.M. Knitting Industries (P.) Ltd. [ 2015 (11) TMI 397 - SC ORDER ] held that filing of foreign tax credit in terms of Rule 128 is only directory in nature and not mandatory. In the present case the petitioner was working in United Kingdom. The petitioner filed return of income in India for the assessment year 2020-2021 on 21.09.2020 showing the income earned in the foreign country, in which he claimed being TDS credit before United Kingdom, as FTC u/s 90. But the petitioner uploaded Form 67 with delay, which h....... + More
- 2024 (10) TMI 1482
Validity of reopening of assessment - notice issued after expiry of normal period of limitation that is four (4) years - change of opinion - tangible materials material found or not? - HELD THAT:- Petitioner had furnished all the documents required for completing the assessment u/s 143(3) of the Income Tax Act, 1961. In the returns that was filed by the Petitioner on 15.09.2013, the Petitioner has disclosed the entire amount received under the aforesaid Agreement but claimed as capital gains instead of treating them as business income. Since the assessment was completed after furnishing all the documents including the two mentioned agreement....... + More
- 2024 (10) TMI 1481
Transfer of case u/s 127 - sufficient material for transfer or not? - transfer from the Office of Income Tax, Corporate Ward-2(3), Chennai to the Office of the DCIT, Circle- 4(4), Kolkata ('Central Circle') - transfer order has been passed to centralize the case of the petitioner for effective and co-ordinated investigation along with other cases - HELD THAT:- Though petitioner contended that the petitioner is having their registered office at Chennai and no business activities were carried out at Kolkata, but upon search and seizure carried out u/s 132 on 12.10.2023 by the Authorised Officer under the control of the Principal Direct....... + More
- 2024 (10) TMI 1480
Validity of the Section 234E - processing TDS statements u/s 200A - HELD THAT:- In the present case, the respondent had imposed the late fee only u/s 234E of the Act. However, Section 200A of the Act was not introduced during the said assessment years and it was introduced only with effect from 01.06.2015 . Therefore, in the absence of any provisions under Section 200A the respondents ought not to have imposed late fee under Section 234E while processing the applications for TDS u/s 200A. Hence, in such view of the matter, this Court is of the opinion that the impugned Demand Intimation Letters are liable to be set aside. Decided in favour of assessee.
- 2024 (10) TMI 1479
Penalty u/s 271(1)(c) - Violation of principles of natural justice in passing penalty orders without granting reasonable opportunity to the petitioner. HELD THAT:- When the ITAT passed orders as early as on 09.01.2024 and 10.01.2024, it is not known as to what prevented the respondent from acting in consequent to the order passed by ITAT immediately, rather than to wait till the fag end of six months' expiry time and to issue notice on one fine day, i.e., 19.07.2024, by quantifying the penalty amount and calling upon the petitioner to pay the penalty amount, the petitioner, who has issued with such notice all of a sudden, sought for two ....... + More
- 2024 (10) TMI 1478
Rejection of Condonation of delay in filing income tax returns - as per petitioner reasons such as the impact of Covid-19 on operations, loss leading to non-payment of electricity charges, and corruption of computer data lead to delay - HELD THAT:- On perusal of records, it is seen that due to outbreak of Covid-19 and lock down throughout the Country since March 2020, the petitioner- Company's operations were stopped abruptly, therefore, the petitioner- Company faced with a huge loss, resulting in non-payment of the electricity charges, due to which, power connections were also cut in the Factory, apart from the same, due to non-usage of....... + More
- 2024 (10) TMI 1477
Bogus purchases - information received from the Sales Tax Department, Maharashtra - CIT(A) deleted part addition - HELD THAT:- As regards the submission of the DR that the amount continues to represent unsubstantiated and non-genuine purchases which remain unexplained and unverifiable, it is pertinent to note that the assessee furnished detailed documents, as noted in the foregoing paragraph and also taken note of by CIT(A) of its order, which as evident from the record were neither been controverted by the AO nor stated to be false and bogus. The fact that the assessee failed to furnish the information in the format required by the AO canno....... + More
- 2024 (10) TMI 1476
Estimation of income - bogus purchases - AO has only estimated the profit from the alleged bogus purchases @ 12.50% - contention of the assessee that it has furnished the details relating to purchases, payments made to the supplier, confirmation from the supplier and also the details of sale of products to various persons - HELD THAT:- The assessee herein has furnished all details evidencing the purchases, confirmation from the suppliers, the details of sales made out of those purchases. There is no evidence to show that the money given towards purchases was flown back to the assessee. AO has accepted the sales. Accordingly, we are of the vi....... + More
- 2024 (10) TMI 1475
FTS/FIS/Royalty receipt - Taxability of the amounts received by the assessee from the Indian customers towards supply of software updates and patches and on-call support services - Fee for Technical Services (FTS)/Fee for Included Services (FIS) under the Income Tax Act as well as under India USA Double Taxation Avoidance Agreement (DTAA) - as submitted by the assessee that on-call support services cannot be treated as FIS either u/Article 12(4)(a) of India USA tax treaty as it is not ancillary to any royalty income or u/Article 12(4)(b) as no technical knowledge, know-how, skill etc. was made available to the service recipient while providi....... + More
- 2024 (10) TMI 1474
Revision u/s 263 - as per CIT assessment order passed by AO u/s 143(3) r.w.s 153A is found to be erroneous in so far as it is prejudicial to the interest of the revenue - addition made by AO towards the undisclosed cash sales should be taxed as unexplained money u/s 69A r/w section 115BBE - HELD THAT:- PCIT did not find error or prejudiced with the quantum and the manner the assessment proceeding is carried out by the ld. AO. PCIT merely initiated proceeding just to amend the rate of tax to be charged on the disputed addition. As we note that the addition has been made by making the extrapolation and no clear finding on facts of undisclosed ....... + More
- 2024 (10) TMI 1473
Ex parte order of CIT(A) - denial of principle of natural justice - Penalty u/s 271B imposed - As argued that assessee could not get reasonable opportunity of being heard from the CIT (A) - HELD THAT:- As first notice was given to the assessee in the month of December, 2020 which was complied with by the assessee, but thereafter there were long gap of almost 22 months when another notice on 3rd November, 2022 was issued for enablement of Window, which did not require any response neither there was any such option. Again, thereafter there was complete silence for around 19 months before issuing notices on 11.06.2024, 28.06.2024 and 09.07.2024....... + More
- 2024 (10) TMI 1417
Unexplained investments/ amounts deposited in the foreign bank account - delay filing SLP - Whether no concrete evidence to establish either the ownership of the alleged bank account or the alleged disputed deposits in those accounts to be belonging to the assessee - HC decided [ 2023 (11) TMI 759 - PUNJAB AND HARYANA HIGH COURT] assessee being an agriculturist and only having a small holding of land apparently could not be in possession of such huge amounts, which were also in foreign currency. Nothing as such was produced on record that the same was transferred from India where he was doing some business. It is neither the case of the reve....... + More
- 2024 (10) TMI 1416
Maintainability of appeal on low tax effect - Liability to pay interest u/s 234B - non payment of tax in respect of Assessment Year 2005-06 and 2006-07 - as decided by HC [ 2020 (9) TMI 873 - KARNATAKA HIGH COURT] legal position as it existed for the relevant Assessment Years prior to insertion of proviso to Section 209(1) of the Act, it is clear that if payer who was required to make payments to non resident had defaulted in deducting the tax at source from such payments, the non resident is not absolved from payment of taxes thereupon and non resident is liable to pay tax and the question of payment of advance tax would not arise. HELD THA....... + More
- 2024 (10) TMI 1415
Validity of Revision u/s 263 - substantial question of law or fact - there were discrepancies in the figure with regard to value of current assets and current liabilities shown in the balance sheet as on 31.03.2008 vis- -vis the cash flow statement filed before the AO - as decided by HC [ 2023 (12) TMI 1364 - ORISSA HIGH COURT] CIT(A) has dismissed the appeal exparte. Appeal had been filed before the Tribunal and the Tribunal had exparte restored the issue back to the file of CIT(A). CIT(A) also dismissed the appeal for non-compliance. Tribunal in the interest of natural justice had restored the issue to the file of the CIT(A) so that the, a....... + More
- 2024 (10) TMI 1414
Recovery proceedings - Suo motu revision u/s 263 - Tribunal directed to make inquiries as directed by the Principal Commissioner of Income Tax regarding the correctness of the valuation report of the accountant - petitioner s primary contention is that the directions of the Tribunal were not carried out in the order of assessment passed on remand; nor were the directions issued in the order u/s 263 complied with. HELD THAT:- We are of the opinion that the recovery should await the disposal of the appeal especially since the demand raised is based on an assessment order, which was passed prior to the Tribunal s order. As submitted that 20% of....... + More
- 2024 (10) TMI 1375
Validity of assessment order passed u/s 143(3) r.w.s. 144B - disallowance u/s 40(a)(ia) - no notice of an intent of the AO to reject the books of account and to make additions referable to section 40(a)(ia) - As decided by HC [ 2024 (5) TMI 1480 - DELHI HIGH COURT] from show-cause notice, AO had in clear and unequivocal terms placed the petitioner- assessee on notice with respect to the doubts harboured by it relating to the correctness and completeness of the accounts of the assessee. AO had further observed that since the expenditure claimed is not verifiable, income was proposed to be assessed at 12 per cent. of the total disclosed revenu....... + More
- 2024 (10) TMI 1374
Revision u/s 263 - TDS u/s 195 - disallowance of expenditure u/s 40(a)(ia) - HC held that conclusion reached by the ITAT that the CIT could not have unilaterally directed the AO to add back the aforementioned sum by holding that it was disallowable as expenditure could not have been issued u/s 263 of the Act without the AO again examining the issue. To that extent, the said direction was indeed beyond the jurisdiction of the CIT u/s 263 - HELD THAT:- We have heard learned senior counsel for the petitioner and for the respondent/Assessee. We are not inclined to interfere in the matter. Special Leave Petition is hence dismissed. Pending application(s) shall stand disposed of.
- 2024 (10) TMI 1373
Assessment u/s 153A - incriminating material found in search or not? - addition made as entire payment through paper/ shell companies for purchase of land measuring 430 acres at Manger, Gurugram and it was assessee who is the ultimate beneficiary of such transactions - as per ITAT additions could not have been made in the hands of the assessee, as such additions had already been made in the hands of bogus entry provider [M/s Peakwood Reality Private Limited] - Whether warrants of authorization issued u/s 132? - HELD THAT:- The original file containing satisfaction note for issue of consequential warrant of authorization and the satisfaction ....... + More
- 2024 (10) TMI 1372
Faceless assessment of income escaping assessment - assessment order was made u/s 143 (3) r.w.s. 260 - as argued assessment order made manually under provisions in section 143 (3) though the assessment was to be done in a faceless manner as per scheme notified on 29th March, 2022 - HELD THAT:- Petitioner seeks interference on strength of notification dated 29th March, 2022. The notification says, it was made in exercise of powers conferred by sub-sections (1) and (2) of section 151-A. The section provides for faceless assessment of income escaping assessment. Accordingly, scope of the scheme, under section 3 thereof is, inter alia, assessmen....... + More
- 2024 (10) TMI 1371
Seeking release of cash seized illegally - scope of second proviso to Section 132B - amount was seized by the respondent from the bank locker belonging to the petitioners - mandate to return the assets to the assessee - HELD THAT:- Once AO has arrived at a satisfaction with regard to the existing liability and with regard to the return of the assets, then the second proviso would apply and the assets or part of the assets as the case may be shall be released within a period of 120 days. Thus, the second proviso is mandatory and the same would come into play only after the satisfaction of the AO and the determination by him and after approval....... + More
Case Laws - GST
- 2024 (10) TMI 1534
Liability of tax on supply - secondment of employees - placement of foreign expatriates to aid and assist in the functions being carried out by the writ petitioners - value to be ascribed to the supply of goods and services and which is regulated by Rule 28 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- Undisputedly, although payments, as asserted in the counter affidavit, were made, no invoices came to be raised by the writ petitioners entities in connection with the services provided by their related foreign. It is in the aforesaid backdrop that learned counsels had drawn our attention to the prescriptions contained in Par....... + More
- 2024 (10) TMI 1533
Seeking grant of bail - double jeopardy - main argument of the applicant is with respect to double jeopardy as the applicant has already been released on bail in the offence under CGST Act and the present case involves the same offence, therefore, detention of the applicant in jail would amount punishing him for the second time for the same offence - HELD THAT:- It would be appropriate to understand the legal principle of double jeopardy which prevents an individual from being prosecuted twice for the same offence after being acquitted or convicted. It is designed to protect individual/person from risk of being subjected to multiple prosecut....... + More
- 2024 (10) TMI 1532
Seeking grant of bail - fraudulent availment of Input Tax Credit (ITC) - criminal conspiracy under Section 120-B IPC - existence of evidence to establish conspiracy or not - economis offences involving large-scale fraud and money laundering - HELD THAT:- The principal of bail is the rule, jail is the exception is a fundamental concept in criminal law, where the criminal justice system recognizes the importance of personal liberty and the presumption of innocence until proven guilty. This principal emphasizes that an accused should ordinarily be granted bail unless there are compelling reasons to detain him in custody. But there are exception....... + More
- 2024 (10) TMI 1531
Petition filed against the rejection order passed by the respondent - HELD THAT:- In the present case, it appears that the petitioner has made the pre-deposit for filing the appeal on 13.03.2024. Thereafter, the appeal was filed manually by the petitioner on 22.03.2024, which was well within the period of limitation. However, the said appeal was rejected by the respondent vide order dated 26.07.2024 stating that the appeal has to be filed only through online portal. In the meantime, the time limit for filing the appeal was expired, due to which, when the petitioner made an attempt to file an appeal through online portal, the same was not acc....... + More
- 2024 (10) TMI 1530
Prayer for setting aside and quashing of the orders - grant of refund with interest - expired -E-way bills - HELD THAT:- In the E-way bills, the distance has been mentioned as 978 kms. The E-way bills were generated on 26.12.2022 at 6:27 pm and was valid upto 31.12.2022 till 11:59 pm. It is an admitted position that E-way bills were not extended. As per Rule 138 (10) of the RGST/CGST Rules 2017, validity of E-way bill may be extended within eight hours from the time of its expiry. The vehicle was seized at 5:45 pm at Beawar on 01.01.2023 and the E-way bills were not extended prior to that. The defence taken up by the petitioner with regard t....... + More
- 2024 (10) TMI 1529
Challenge to SCN and summary of SCN - jurisdiction to issue SCN - taxabaility of transaction of sale of securities (i.e. Stock) - HELD THAT:- This Court with regard to the order passed by this Court in M/S PADAM KUMAR JAIN VERSUS THE STATE OF JHARKHAND THROUGH THE COMMISSIONER, STATE TAX DEPARTMENT, RANCHI; JOINT COMMISSIONER OF STATE TAX; ASSISTANT COMMISSIONER OF STATE TAX; STATE TAX OFFICER, CHAIBASA CIRCLE, CHAIBASA [ 2024 (7) TMI 1546 - JHARKHAND HIGH COURT] stating that the issue involved in that writ petition is similar to the present one, where it was held that 'issue involved in this writ petition has already been decided by thi....... + More
- 2024 (10) TMI 1528
Violation of principles of natural justice - lack of knowledge of proceedings originating in the intimation - notices were uploaded in the 'view additional notices and orders' tab of the GST portal - no reasonable opportunity to contest the tax demand - petitioner agrees to remit 10% of the disputed tax demand as a condition for remand - HELD THAT:- Since the documents on record indicate clearly that the petitioner was not heard before the impugned order was issued, it is just and appropriate that an opportunity be provided to the petitioner albeit by putting the petitioner on terms. The impugned order dated 09.09.2023 is quashed sub....... + More
- 2024 (10) TMI 1527
Rejection of petitioner's appeal on the ground of limitation - availment of ITC by the petitioner - HELD THAT:- The petitioner has placed on record evidence that an online appeal was filed on 31.01.2024 after remitting the requisite pre-deposit. The assessment order was issued on 09.09.2023 and the period of limitation, without condonation, expired in early December 2023. The 30 day period for condonation would have expired in early January 2024 and the appeal was filed shortly thereafter. In the overall facts and circumstances, this is an appropriate case to direct the appellate authority to receive and dispose of the appeal on merits. ....... + More
- 2024 (10) TMI 1526
Violation of principles of natural justice - no personal hearing was offered to the petitioner - GST was imposed on amounts payable by the petitioner - trade payable - HELD THAT:- It is unclear from the impugned order as to the basis for imposing GST on total trade payables. It further appears that the amount specified as turnover was taken directly from the balance sheet of the petitioner. Similarly, GST was imposed on employee benefit expenses by taking the amounts from the profit and loss account of the petitioner for the year 2017-18. Once again, it is unclear as to how liability was imposed with regard to employee benefit expenses incur....... + More
- 2024 (10) TMI 1525
Challenge to assessment order on the ground that a personal hearing was not provided by the petitioner - violation of principles of natural justice - HELD THAT:- As per sub-section (4) of Section 75 of the Tamil Nadu Goods and Services Tax Act, 2017, a personal hearing is mandatory either if requested for or if an order adverse to the tax payer is proposed to be issued. The documents on record include the reply of the petitioner. Such reply deals with each alleged defect. The petitioner also enclosed 10 annexures in support of such reply. In these circumstances, the denial of a personal hearing undoubtedly contravenes the statutory prescript....... + More
- 2024 (10) TMI 1524
Maintainability of petition - availability of alternative remedy - Levy of interest and penalty - petitioner s claim for input tax credit under GSTR 3B returns in respect of certain months for the period 2018-19 has been confirmed already - HELD THAT:- The petitioner has equally efficacious remedy of statutory appeal under Section 107 of the CGST/SGST Act, 2017 against the impugned order. The present writ petition is disposed of with liberty to the petitioner to file appeal against the impugned order under Section 107 of the CGST/SGST Act, 2017, if he is so advised.
- 2024 (10) TMI 1523
Challenge to assessment order - petitioner submits that the petitioner reply and documents have not been considered while denying the TRAN 1 credit - violation of principles of natural justice - HELD THAT:- Under Sub Section 11 of Section 107 of the CGST/SGST Act, the Appellate Authority exercise almost the original jurisdiction and it can call for further reports, make enquiry and consider arguments, documents as may be rationally submitted by the assessee. When the Appellate Authority vested with such an ample power would correct any mistake committed by the assessing authority, this Court finds no grounds to entertain this writ petition. ....... + More
- 2024 (10) TMI 1522
Challenge to assessment order - mismatch between the GSTR 3B returns and the auto-populated GSTR 2A returns - petitioner was not provided a reasonable opportunity to contest the tax demand - violation of principles of natural justice - HELD THAT:- Undoubtedly, the petitioner was negligent in not monitoring the GST portal, in spite of being a registered person. In these circumstances, the impugned order calls for interference, albeit by putting the petitioner on terms. The impugned order dated 11.10.2023 is quashed and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand....... + More
- 2024 (10) TMI 1521
Challenge to assessment order - failure to consider all the GSTR-3B returns filed by the petitioner - violation of principles of natural justice - HELD THAT:- The petitioner placed on record the GSTR 3B returns for several months. On comparing the impugned order against the GSTR 3B return for the month of May 2022-2023, it is evident that the turnover reflected in one single month has been compared with the turnover reflected in the GSTR 7 return filed by the counter party. Given the fact that the GSTR 7 return is an annual return, the comparison made by the adjudicating authority is undoubtedly unsustainable. At the same time, it should be ....... + More
- 2024 (10) TMI 1520
Challenge to assessment order - mismatch between the GSTR 3B and GSTR 2A returns - vague SCN - Lack of details in the SCN - Violation of principles of natural justice - HELD THAT:- On perusal of both the show cause notice and the summary thereof, it is evident that the said show cause notice is vague and does not contain sufficient particulars to enable the taxpayer to effectively show cause in respect of the proposed tax demand. It is also evident that no personal hearing was offered under the show cause notice and the entry in the relevant column is 'not applicable'. The impugned order is quashed and the matter is remanded for reco....... + More
- 2024 (10) TMI 1519
Challenge to letter rejecting Petitioner s bid for providing man power services to Respondent No.2 - rejection of Letter of Intent by which Respondent No.2 asked Respondent No.3 i.e. M/s. Frontier Ex Servicemen Association, Latur to comply with certain conditions for issuance of work order in its favour - Respondent submitted that the Petitioner s contention of Respondent No.3 having submitted documents of another entity was plainly misconceived - HELD THAT:- Petitioner on a perusal of the said GST Registration Certificate fairly accepted the contention of Respondent No. 3. The petition being devoid of merit, the same is accordingly dismissed.
- 2024 (10) TMI 1518
Seeking to quash the order passed by the authority under Section 77 of the Orissa Value Added Tax Act, 2004 - seeking to issue direction to the opposite parties to allow the petitioner to participate in the proceeding of the appeal, which has been rejected without giving opportunity of hearing to it - principles of natural justice - HELD THAT:- This Court finds that against the assessment order passed by the Assessing Officer, the petitioner preferred appeal, but, however, without complying the requirement of law by depositing 10% of the tax. In that view of the matter, the order dated 28.12.2022 and 15.09.2023 passed by the authority under ....... + More
- 2024 (10) TMI 1517
Challenge to order-in-original - wrong availment of Input Tax Credit (ITC) - petitioner's reply was not taken into consideration - violation of principles of natural justice - HELD THAT:- On examining the impugned order, it is evident that the respondent proceeded on the basis that the petitioner had reversed the ITC in the GSTR-9 return and that the GSTR-9 return was unavailable. On perusing the reply of the petitioner, there is no assertion therein that the ITC was reversed in the GSTR-9 return. Thus, there appears to be a disconnect between the reply and the findings recorded in the impugned order. Hence, the impugned order calls for ....... + More
- 2024 (10) TMI 1516
Challenge to assessment order - petitioner was not provided a reasonable opportunity to contest the service tax demand - violation of principles of natural justice - HELD THAT:- The petitioner averred that the services of a consultant were availed of to handle service tax compliances and that she was unaware of proceedings culminating in the impugned order because she was not kept informed by such consultant. It also appears that the petitioner was running a beauty parlour. While the explanation of the petitioner is not totally convincing, it appears that the tax demand against a person carrying on business on a very small scale has been con....... + More
- 2024 (10) TMI 1515
Challenge to impugned order of the appellate authority under the CGST Act confirming the order of the adjudicating authority - appellable order before the Tribunal - HELD THAT:- Let the respondents file affidavit-in-opposition with in four weeks, petitioner to file reply there to, if any, with in two weeks thereafter. List this matter for final hearing in the monthly list of June, 2024.
Case Laws - Customs
- 2024 (10) TMI 1472
Fraud practised by the defaulter and his brother only to obstruct the government from recovering its legitimate dues - Petitioner s brother was declared a defaulter regarding payment of the customs dues and after receipt of this order, the defaulting brother purported to gift his share to his brother by a registered gift deed - main argument is that the attachment order under the Customs (Attachment of Property of Defaulter for Recovery of Government Dues) Rules, 1995 (said Rules) was made only on 26 June 2013; therefore, there was nothing wrong with the registered gift deed dated 6 May 2006 HELD THAT:- The fact that the gift deed was execut....... + More
- 2024 (10) TMI 1471
Provisional release of the goods being tyres under consideration on the conditions - as argued Tribunal has not considered the test reports issued by IRMRA and no opportunity of hearing was afforded to the investigating agency and, therefore, there is violation of principles of natural justice - HELD THAT:- Revenue s representative conceded before the Tribunal that although during the course of the hearing of the main appeal, a specific question was put by the Bench on the test reports, the said representative replied specifically that there were no such test reports available. However, during the course of the hearing for rectification appl....... + More
- 2024 (10) TMI 1470
Validity of Order in Original imposing penalties upon the Petitioner under Sections 112 (b) and 114AA of the Customs Act - allegation of denial of the opportunity to cross-examine the persons given statements in the adjudication proceedings - HELD THAT:- In the case of Manjeet Singh vs Union of India and others [ 2022 (10) TMI 893 - BOMBAY HIGH COURT] a Co-ordinate Bench of this Court in similar circumstances declined to deviate from the self-imposed restriction regarding exhaustion of alternate remedies. Even in that case, the complaint was about not granting cross-examination opportunities. The Co-ordinate Bench relied upon the decision of....... + More
- 2024 (10) TMI 1413
Import of cylinders without a PESO certificate - non-compliance with Rules 31 and 32 of the Gas Cylinder Rules, 2016 - goods under the bill of entry confiscated under Section 111(d) of the Customs Act, 1962 - as argued reasons entirely attributable to the PESO Authorities, the Petitioner cannot be made to suffer either confiscation or Penalty -Respondents, pointed out that even if the incorrect PESO Certificate dated 25th April 2024 were to be regarded as valid, still, the goods, in this case, arrived on 16th April 2024 i.e. before the date of such certificate - redemption fine and the penalty imposed HELD THAT:- Considering that in the pres....... + More
- 2024 (10) TMI 1412
Show cause notice pending adjudication for the last 15 years - eligible reasons for inordinate and unexplained delay - HELD THAT:- In the present case, the delay between 2008 and 2021 is inordinate and, moreover, unexplained. The affidavit filed by the Respondent does not explain this inordinate delay. The Hon ble Supreme Court s order M/S SWATI MENTHOL AND ALLIED CHEMICALS LTD ANR. [ 2023 (7) TMI 662 - SC ORDER] as noticed by the Co-ordinate Bench, does not make out the proposition that gross, unjustifiable and inordinate delay in adjudication of the show cause notice must, in every case, be excused regardless of the absence of any reasonab....... + More
- 2024 (10) TMI 1411
Duty Drawback claim - Impugned Order is challenged by the Petitioner primarily on the ground that the denial of Duty drawback long after the export were made and the benefits which were extended have been denied pursuant to Circular No.55/99-Cus dated 25.08.1999 - HELD THAT:- The order does not call for any interference. The issue has been examined by the Revisional Authority in the light of the decision of the Karnataka High Court in the case of CCE Bangalore Vs. Central Manufacturing Technology Institute [ 2001 (7) TMI 147 - HIGH COURT OF KARNATAKA AT BANGALORE ], wherein, it has been held that clarificatory notifications are retrospective....... + More
- 2024 (10) TMI 1410
Misdeclaration of imported polished marble slabs as unpolished slabs - as alleged that during physical verification, quantity of 51.85 Sqm (slabs) were found in excess - customs duty demanded along with interest and imposed on the importer and other co-noticees' Importer admittedly paid total customs duty as prior to issue of show cause notice and after issue of show cause notice along with interest and 15% penalty and requested to close the proceedings in view of Section 28(5) and 28(6) of the Customs Act, 1962 - Commissioner instead of closing the proceedings under Section 28(5) and 28(6) of the Customs Act, held that show cause notice....... + More
- 2024 (10) TMI 1368
Imposition of penalty on the Appellant under Section 112 (a) of the Customs Act, 1962 - cryptic and non-speaking order - Non-consideration of any of the submissions of the Appellant - violation of principles of natural justice - it was held by High Court that ' The finding arrived at by the Commissioner as well as the Tribunal was on facts that appellant had abetted evasion of duty' - HELD THAT:- It is not required to interfere with the impugned order passed by the High Court. Accordingly, the Special Leave Petitions are dismissed.
- 2024 (10) TMI 1367
Restoration of import policy of newsprint - it is submitted that if the earlier policy is to prevail, they may not have any objection for the disposal of the Special Leave Petition - HELD THAT:- The Special Leave Petition stands disposed of, as the petitioner has now decided to discontinue the Notification No. 9 dated 03.06.2016 which, in any case, has also been quashed by the High Court and to restore the import policy of newsprint which prevailed prior to 03.06.2016. In other words, the petitioners are not pressing this Special Leave Petition. SLP disposed off.
- 2024 (10) TMI 1366
Obscene art materials - prohinition on import and confiscation of seven drawings by world-renowned artists, Mr. F N Souza and Mr. Akbar Padamsee - entire case is based on N/N. 1/1964-Customs dated 18 January 1964, issued under Section 11 of the Customs Act, 1962, and it is contended that since such artworks constitute obscene drawings, paintings or representations, importing such artworks is prohibited - HELD THAT:- The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticised. Those who disagree have a simple expedient of not watching a film, not turning the pages of ....... + More
- 2024 (10) TMI 1365
Challenge to holding/impounding/detaining of the rubber process oil stated to have been imported by the petitioner - seeking direction to the respondents to release the said goods and also to pay the compensation - Hazardous Waste or not - HELD THAT:- The record produced by Mr. Vaibhav Sharma, Appraiser, ICT Import, Customs Department, who brought the relevant record reflects that the sample was only tested by Mr. Arun Kumar Maurya, Chemical Examiner GR-2, from the office of the Regional Revenues Control Laboratory, New Delhi-110012, controlled by the Department of Revenue, Ministry of Finance, Government of India but it does not reflect tha....... + More
- 2024 (10) TMI 1364
Provisional attachment of bank accounts of the Petitioners - Section 110 (5) of the Customs Act, 1962 - HELD THAT:- In similar circumstances, this Hon'ble Court in Bharat F. Parmar, Karta of M/s. Kaka Gold vs. Union of India and Ors.[ 2023 (11) TMI 271 - BOMBAY HIGH COURT ], where the value of the alleged purchases were Rs.22 crore. Considering the duty at the rate of 10%, the duty was roughly estimated at Rs.2 crores in paragraph 8. Subsequently, the Hon'ble Court gave directions on page 5, below paragraph 9. The party therein was, inter alia, asked to keep a sum of Rs. 1.5 crores in fixed deposit and mark a lien in favour of the Re....... + More
- 2024 (10) TMI 1363
Legality and Jurisdiction of seizure of the gold dust - violation of fundamental rights of the Petitioner - jurisdiction to accost and apprehend Transit passengers, and their detention - misdeclaration - HELD THAT:- Since, in this matter, gold dust is seized from the petitioner. The interest of justice would be met if the direction for not disposing of seized items until adjudication proceedings are concluded must operate. Petition disposed off.
- 2024 (10) TMI 1362
Dismissal of bail application - seizure of commercial quantity of contraband - cognizance of offences allegedly committed by applicant under Sections 8/21/23/28 of the NDPS Act - Improper Sampling Procedure - Delay in filing Section 52A Application NDPS Act - Proforma Notice under Section 50 of NDPS Act - Defective Notice under Section 102, of Customs Act - Delay in Trial. Improper sampling procedure - HELD THAT:- In the facts of this case, the seizure was made at the airport in a supervised environment where capsules were found to be containing heroin. As noted, there is no prohibition at least pre-December 2022 [when the notification issue....... + More
- 2024 (10) TMI 1361
Benefit of N/N. 52/2003-Cus. dated 31.03.2003 on goods re-imported after one year - re-import of 6000 kg. Coarse Ground Chilli which was originally exported - Department was of the view that since said part consignment had been rejected which accordingly would fall under Sr. No.15 of Annexure-I of Notification No. 52/2003-Cus. dated 31.03.2003 and re-import was made after one year of the initial export, hence, the benefit of the said Notification not admissible - HELD THAT:- The difference between the entry at Sr. No.14 and 15 of the notification is that in the former case, the goods could be re-imported for repair or reconditioning, irrespe....... + More
- 2024 (10) TMI 1360
Levy of penalties u/s 114(i) and/or 114(AA) of the Customs Act, 1962 - appellant was involved in abating the smuggling of red sanders - bona fide belief. Penalty u/s 114(i) of CA - HELD THAT:- The penalty was imposed on the appellant only for the charge of negligence. In this case, since, the appellant was not aware about the concealment of red sander in the container with feldspar powder , It cannot be said that the appellant was involved with mala fide intention to abet the smuggling of red sander . It is found that involvement in abetting the smuggling of red sander was not established against the appellant. The case was detected only on ....... + More
- 2024 (10) TMI 1359
Valuation of imported goods - rejection of declared value - enhancement of value - goods were supplied by the foreign company to the related Indian company at a much lesser price when compared with those supplied to an unrelated buyer in India or not - HELD THAT:- When the imported goods were running into more than 100 items, a reference was made only to 22 items. Whatever the inputs information submitted by the Respondent whether was considered or not is not clear from the orders passed. Further, it is not disputed that the grounds on the basis of which values were enhanced were not intimated to the Respondent-importer. The volumes of impor....... + More
- 2024 (10) TMI 1358
Refund of SAD paid by them at the time of the import in terms of the Notification No. 102/2007-Cus. dated 17.09.2007 - Time Limitation - rejection of claim of the appellant only on this ground that the period of one year from the date of the payment of the SAD have not been followed by the appellant - HELD THAT:- The matter is no longer resintegra, as the Larger Bench of this Tribunal in case of M/S. AMBEY SALES VERSUS COMMISSIONER OF CUSTOMS, GRFL, SAHNEWAL, LUDHIANA [ 2024 (6) TMI 257 - CESTAT CHANDIGARH-LB] has decided the issue and it was held that ' The limitation of one year for filing a claim for refund of additional duty of custo....... + More
- 2024 (10) TMI 1357
Import of goods at concessional rate of duty - Process amounting to manufacture - assembly from the semi -knockdown condition to full TV - argument of the revenue is that the goods imported by the appellants are in semiknockdown condition - HELD THAT:- It is seen that what is being imported are not goods in semi -knockdown condition. All the goods imported are individual items separately classifiable under different headings. Learned counsel pointed out that they are buying many products from local market. However, even if that is not the case, assembly of Television from individual components to a full T.V is a process of manufacture. In fa....... + More
- 2024 (10) TMI 1356
Levy of penalty u/s 112(b)(ii) of the Customs Act, 1962 - Primary Gold of foreign origin from a secret cabinet - admissibility of the statement recorded under Section 107 of the Customs Act, 1962 - HELD THAT:- In this case, the statement of Shri Suman Chandra Paul, one of the Appellants, has been heavily relied upon by the ld. adjudicating authority in the impugned order to impose penalty on both the Appellants. Admittedly, the statement of Shri Suman Chandra Paul was recorded under Section 107 of the Customs Act, 1962 which is not an admissible piece of evidence as held by the Tribunal in the case of COMMISSIONER OF CUSTOMS (PREV.), LUCKNOW....... + More
Case Laws - Corporate
- 2024 (10) TMI 1469
Quashing the Impugned Action of the Respondent Bank by which it has arbitrarily, unfairly and unreasonably invoked the Fraud Circular against the Petitioner and declared his account as fraud - no event of wilful default or fraud qua the account of MBSL - HELD THAT:- The counter-affidavit by the respondent-bank contains no indication that any SCN was issued to the petitioner proposing his classification or categorization as fraud , nor was he informed about the uploading of his name on the Central Fraud Registry of the RBI. There is no iota of an averment that any relevant documents, including the copy of the forensic audit report, were ever ....... + More
- 2024 (10) TMI 1468
Oppression and Mismanagement - Maintainability of the present writ petition preferred by the petitioner company invoking Article 226 of the Constitution of India, 1950 - seeking issuance of directions to respondent No. 1/RBI to initiate action against respondent No. 2 company i.e. Exclusive Capital Limited in terms of the provisions contained in Chapter IIIB of the Reserve Bank of India Act, 1934 - HELD THAT:- It is well ordained in law that a writ of mandamus lies where there is shown a failure to exercise the powers vested in statutory authorities and delay in exercise of its powers might bring about irreparable injuries to statutory right....... + More
- 2024 (10) TMI 1467
Principle of res judicata - Department of Expenditure (DOE) is an 'enterprise' under Section 2(h) of the Competition Act, 2002 - Office Memorandum (OM) issued by DOE constitutes an agreement under Section 3(4) and Section 3(1) of the Act or not - HELD THAT:- The issue as to whether the Respondent No. 2 is an enterprise and OM 1 is an agreement has already been decided by the Respondent No. 1 in case no. 39 of 2010 decided on 15.09.2010 holding that neither the Respondent No. 2 is an enterprise within the meaning of Section 2(h) nor OM1 is an agreement between Respondent No. 2, 3 and 4. It is pertinent to mention that the Hon ble Supr....... + More
- 2024 (10) TMI 1409
Intervention by Greenopolis Welfare Confederation in the proceedings - Role and actions of the Interim Resolution Professional (IRP) - HELD THAT:- Having heard the learned counsel for the parties and in order to safeguard the assets of the corporate debtor, for now, the IRP is allowed to take measures which are indicative above vide serial no. 1, 2, 3, 5, 6 and 12. In the consideration of this Court, such measures are necessary so as to safeguard the assets of the company and also the interest of the stakeholders. Compliance cum updated status report be filed by the IRP on or before the next date of hearing - This application is disposed of.
- 2024 (10) TMI 1136
Condonation of delay of 68 days of filing appeal - sufficient cause for delay or not - whether there is any reason to record satisfaction that the Appellant was prevented by sufficient cause from filing the appeal within that period? - HELD THAT:- No sufficient cause has been shown by the Appellant as to how he was prevented from filing the appeal within period as required under Section 421(3) proviso. It is not persuaded to entertain submission of the Appellant on the merits of challenge to the order impugned. There is one more reason due to which Appellant s prayer in the application for condonation of delay cannot be allowed. It is noted ....... + More
- 2024 (10) TMI 1135
Nomination of 15 number of persons as Directors in General Committee of Delhi Gymkhana Club Limited. - Section 241-242 of the Companies Act, 2013 - conditions precedent for invoking provisions of Section 241(2) of the Companies Act, 2013 - formation of opinion by the Central Government under Section 241(2) - conduct of affairs of the Company in proper way or not - sufficient materials on the record for formation of requisite opinion - affairs of the Company (Delhi Gymkhana Club) were being conducted in a manner prejudicial to the public interest or not - interim order or final order - finding for exercising jurisdiction under Section 242 of ....... + More
- 2024 (10) TMI 985
Unilateral change of appointed date from 1.4.2019 to 1.4.2020, by Ld. NCLT, while admitting the scheme of arrangement between the parties - HELD THAT:- A bare perusal of the impugned order would show the said order is passed by the Ld. NCLT relying upon the General Circular No.9 of 2019 dated 21st August, 2019 as above, more particularly its Clause (c) of para 6. However, the Learned NCLT failed to notice the application for the scheme of merger was filed on 1st December, 2019 and in terms of the said para 6(c) of the Circular (Supra), the appointed date was fixed at 01.04.2019, which was within a year of filing of the Scheme. Hence, even as....... + More
- 2024 (10) TMI 906
Amendment of amalgamation scheme - Rejection of application for amendment of the Scheme of Amalgamation - miniscule change in the swap ratio of the Transferor Companies - HELD THAT:- In Maccaferri Environmental Solutions Private Limited [ 2008 (7) TMI 1126 - PUNJAB AND HARYANA HIGH COURT ], sanction was sought to amend the scheme by changing the appointed date which also necessitated a change in the swap ratio. Sanction was accorded to the same by the Ld NCLT Mumbai bench and the proposed amendments were allowed. In IN THE MATTER OF SCHEME OF AMALGAMATION OF OBEROI CONSTRUCTIONS LIMITED AND ORS. [ 2024 (2) TMI 1444 - NATIONAL COMPANY LAW TRI....... + More
- 2024 (10) TMI 883
Interpretation of Rule 50 of the NCLT Rules and Rule 22 of the NCLAT Rules regarding the filing of appeals under the IBC - Rejection of petition on the ground of maintainability by an order - HELD THAT:- Rule 22(2) of the NCLAT Rules requires that every appeal shall be accompanied by a certified copy of the impugned order. Rule 50 of the NCLT Rules prescribes that the Registry shall send a certified copy of the final order free of cost and certified copies may be made available on payment of costs in terms of the Schedule of Fees in all other cases. Both the certified copy which is made available free of cost as well as the certified copy wh....... + More
- 2024 (10) TMI 836
Contravention of Sections 3(3)(c) and 3(3)(d) r/w Section 3 (1) of the Competition Act, 2002 - guilty of bid rigging and cartelisation in a Tender process initiated by SBI Infra Managemnt Solutions Pvt. Ltd. (SBIIMS) - whether the penalty imposed on Appellant No.1 is proportionate to the offence and whether it meets the criteria laid down in Excel Crop Care Ltd. vs CCI [ 2017 (5) TMI 542 - SUPREME COURT ]? HELD THAT:- The CCI has made the reference to the Excel Crop Care Ltd. vs CCI in its order and mentions that the principle of proportionality as laid down by Hon ble SC was in the context of multi- product companies only. The CCI noted tha....... + More
- 2024 (10) TMI 835
Seeking waiver of interest amount payable on monetary penalty - It is submitted since the instant Appeal is pending consideration since 2019, the interest is mounting, hence the appellant thought it appropriate it should pay the penalty and get a waiver of interest - power to waive interest under Regulation 5 of CCI (Manner of Recovery of Monetary Penalty) Regulations, 2011 - HELD THAT:- Admittedly Godrej was a small player in the field of dry cell market and had an insignificant market share like Geep. Godrej, admittedly, was not in a bargaining/negotiating position as compared to Panasonic. Further, Godrej suffered losses in the market for....... + More
- 2024 (10) TMI 730
Wilful misconduct - Scope of judicial review - seeking removal of the Respondent No. 2 as a Resolution professional - providing documents and other information to enable the applicant to file objections to the Resolution plan - seeking disqualification of the proposed Resolution applicant - seeking action against the petitioner for alleged fraudulent transactions - HELD THAT:- The scope of judicial review in present proceedings wherein petitioners seek setting aside of order dated 22.08.2022 passed by IBBI, taking a lenient view qua shortcomings on the part of RP besides declaring all CIRP proceedings before learned NCLT to be illegal and no....... + More
- 2024 (10) TMI 633
Professional misconduct - Non-compliance with applicable accounting standards - non-cooperation of Auditor - Appellant did not respond to the various letters and show cause notice issued by the NFRA - Section 132 (5) read with Section 410 of the Companies Act, 2013 - violation of principles of natural justice. Only plea of the Appellant in his defence is that he relocated himself in Nepal in 2021 and therefore he could not receive any letters and also since in Nepal his telephone was not working and his e-mail was also not accessible. HELD THAT:- At one hand, the Appellant claims that from Nepal he replied to SEBI on E-mail but on the other ....... + More
- 2024 (10) TMI 402
Dismissal of application under Order VII Rule 11 of CPC - name of the respondent/plaintiff company had been struck off from the Register of Companies in terms of Section 248(5) of the Companies Act, 2013 - HELD THAT:- As per Section 248 (1) to (5) of the Act, a mechanism has been provided whereby the Registrar of Companies on finding the grounds which are enumerated under Section 248 (1), can issue notice to the company and its directors and after adopting the appropriate procedure, it may proceed to strike off the name of the company from the register under sub-section (5) thereof. On a careful reading of the words in Section 250 of the Act....... + More
- 2024 (10) TMI 296
Seeking to restore the name of the company in the Register of Companies maintained by the Registrar of Companies, Mumbai - company had failed to file its Financial Statements and Annual Returns for the Financial Years w.e.f. 31.03.2014 to 31.03.2018, i.e. for five years - HELD THAT:- In the present case, the company was incorporated in the year 2007 and admittedly, they had filed Audited returns/Accounts till 2013 and has an asset of Rs. 3 Crores, as on 20.04.2008 viz. 30,000 Convertible Preference Shares of Rs. 1000/- each as on 20.04.2008 and that the Appellant company would not be able to recover such amount from M/s Victoria Enterprises ....... + More
- 2024 (10) TMI 16
Sanction of scheme of compromise and arrangement filed under Section 230 of the Companies Act, 2013 - HELD THAT:- The applicants have referred the scheme of arrangement which was filed by the CD under section 230 of Companies Act, 2013. The counsel representing the Financial Creditors had already opposed the issuance of notice in the Intervention Petitions filed by the applicants and pressed for the dismissal of the applications, arguing that there are no provisions in the Insolvency and Bankruptcy Code (IB Code) for intervention at the pre-admission stage. The submissions of the Financial Creditors were also recorded in the order dated 15.0....... + More
- 2024 (9) TMI 1613
Seeking approval of the Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulation - HELD THAT:- All the requirements of Section 30(2) are fulfilled and no provision of law for the time being in force appears to have been contravened. Section 30(6) of the Code enjoins the Resolution Professional to submit the Resolution Plan as approved by the CoC to the Adjudicating Authority. section 31 of the Code deals with the approval of the Resolution Plan by the Authority if it is satisfied that t....... + More
- 2024 (9) TMI 1612
Oppression and mismanagement - Illegal sale of land of the Company - illegal allotment of 17,29,000 equity shares - illegal appointment of Respondent No.4 as Director of the Company - illegal eemoval of Petitioner No.1 as Director - correctness of Amendment of Memorandum and Articles of Association - legality of Extra-ordinary General Meetings held and resolutions passed - Recovery of syphoned money with interest. Whether the acts or conduct of respondents are prejudicial and oppressive to the petitioners or /and whether the affairs of the Company are being conducted in a manner prejudicial to the interests of the Company as alleged by the p....... + More
- 2024 (9) TMI 1611
Oppression and mismanagement of the Company - Issuing notice of EGM dated 01.10.2022 for the meeting to be held on 11.10.2022 - Removal of Petitioners as Directors and further of Petitioner No. 1 as Managing Director - HELD THAT:- Section 242 places a heavier burden on the complainant as he is required to prove that the affairs of the company are oppressive and prejudicial to any member or the interests of the company - The alleged acts of oppression are linked to the EGM dated 11.10.2022. The Companies Act, 2013 lays down procedure as how the meeting is to be convened. As far as removal of directors of the Company other than one appointed b....... + More
- 2024 (9) TMI 1610
Seeking direction to appoint an Inspector to carry out the Investigation into the affairs of the Respondent Companies in terms of the Section 213 (b) of the Companies Act, 2013 - fraud under Section 447 of the Companies Act, 2013 - HELD THAT:- The present Petition has been filed under sub-section (b) of Section 213 of the Companies Act, 2013 and as per the said Section the Petitioner is required to satisfy this Tribunal that there are circumstances suggesting that the business of the Respondent companies is being conducted with intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose, or ....... + More
Case Laws - IBC
- 2024 (10) TMI 1466
Approval of the resolution plan - wrongful allocation of Rs. 79 lakhs as the liquidation value - HELD THAT:- The Hon ble Supreme Court in M/s Amit Metaliks Limited Anr. [ 2021 (6) TMI 684 - SUPREME COURT ] while taking into consideration Section 30(4)(2) and Section 53 held that the NCLAT was right in observing that such amendment to sub-section (4) of Section 30 only amplified the considerations for the CoC while exercising its commercial wisdom so as to take an informed decision in regard to the viability and feasibility of resolution plan with fairness of distribution amongst similarly situated creditors and the business decision taken in....... + More
- 2024 (10) TMI 1408
Inclusion of outstanding lease rental and premium due from the date of CIRP commencement that is 26.11.2018 till the approval of the resolution plan i.e. 12.09.2022 in the CIRP costs - CIRP has been triggered and moratorium has been imposed - Section 5(13) of IBC - HELD THAT:- The Appellant has relied upon a decision of this Court in the case of Sunil Kumar Agrawal [ 2023 (1) TMI 552 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which a similar controversy was involved. In the said case, the application was filed under Section 60(5)(c) of the Code by GNIDA for a direction to the resolution professional to make t....... + More
- 2024 (10) TMI 1407
Approval of Resolution Plan - Applicability of Section 240A of the IBC to the Corporate Debtor registered as MSME - whether SRA was ineligible as per Section 29A (c) of the IBC, to submit the Resolution Plan in the CIRP of the Corporate Debtor? - HELD THAT:- The Adjudicating Authority has held that Birendra Kumar Pasari, who is Managing Director of the SRA is also the Promoter and in control and management of the CD, hence, he shall be deemed to be in management and control of the SRA. It was also noted and observed that Birendra Kumar Pasari and his family members are also in management and control of the Financial Creditor. After consideri....... + More
- 2024 (10) TMI 1353
Maintainability of section 7 application - initiation of CIRP - existence of debt and default on the part of the Corporate Debtor - HELD THAT:- There is a disbursement against the consideration for time value of money and there is a clause for payment of interest. Further, the documents furnished show that it is receivables discounting with recourse basis. Thus, receivables sold under recourse basis will constitute a financial debt as per Section 5 (8)(e) of IBC Act. It has been held by the Hon ble Supreme Court in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK ANR. [ 2017 (9) TMI 58 - SUPREME COURT ] as well as in MOBILOX INNOVATIONS PR....... + More
- 2024 (10) TMI 1185
Locus of the appellant before the Court - inherent powers under Rule 11 of the NCLAT Rules 2016 - adequate addressing of objections raised by the appellant or not - discretionary power under Rule 11 of the NCLAT Rules 2016. Whether the appellant, who is not a party to the settlement between the second respondent and the Corporate Debtor, has locus in the proceedings before this Court? - HELD THAT:- Section 62 of the IBC stipulates that any person who is aggrieved by the order of the NCLAT may file an appeal before the Supreme Court within the prescribed limitation period. Similar language is used in Section 61 of the IBC, which provides for ....... + More
- 2024 (10) TMI 1184
Initiation of CIRP proceedings - existence of debt - main objection to the initiation of CIRP proceedings on the ground of limitation was rejected by the Adjudicating Authority on the ground that there is an acknowledgement of debt in the financial statements as well as auditor s report of the Corporate Debtor for the year ending on 31.03.2017 - HELD THAT:- The Adjudicating Authority as well as the NCLAT have concurrently held that the entries in the balance sheets amount to clear acknowledgment of debt. The findings are agreed upon. Further, Note 3.4 appended to said balance sheet entry dated 31.03.2017 mentions that company has made certai....... + More
- 2024 (10) TMI 1183
Extinguishment of claims upon approval of the Resolution Plan - amount arising out of termination of the Agreement due to non-renewal of the PBG - 'clean state' principles - whether the respondent was liable for the alleged dues, thereby ascertaining its eligibility to participate in the coal mine auctions? - HELD THAT:- Once the claim was returned to the appellant to be re-filed, it did not take any action in pursuance thereto. Thus, there did not exist any claim to be processed by the Resolution Professional to be placed before the Committee of Creditors and thereafter, before the NCLT for approval of the Resolution Plan. Notwithst....... + More
- 2024 (10) TMI 1182
Direction to withdraw the withdrawal letter of mine opening permission - direction to Appellant to keep aside the Annual Mine Closure Cost besides directing the Appellant personally liable for disposal of the mined coal in accordance with the terms of the Mine Agreement - HELD THAT:- On looking at the terms of the Escrow Agreement, it is clear that Clause 3 provides that the AMCC was to be placed in the Escrow Account to perform the mine closure obligations. Undisputedly, the same clause also provides that CCO is to be the exclusive beneficiary and that AMCC is to be verified by the CCO. It is equally significant to note that in the very suc....... + More
- 2024 (10) TMI 1181
Rejection of application for time extension to implement resolution plan - Appellant is ready to deposit the balance amount of the Resolution Plan - HELD THAT:- The entire amount has been deposited in the account of the Corporate Debtor, Liquidator shall distribute the amount to the Creditors as per the Resolution Plan. Appellant shall make payment of Rs.10.5 Lakhs to the Liquidator towards the liquidation cost within two weeks from today by a Bank Draft or by RTGS. Liberty granted to the Liquidator to file an Application before the Adjudicating Authority with regard to entitlement of fee, if any, which may be decided in accordance with law........ + More
- 2024 (10) TMI 984
Recovery of Tax - Applicability of Section 31 of the IBC - Seeking a declaration that the demand notice and the communication issued to it by Gram Panchayat, Gowari, through its Secretary, Tahsil Rajura, District Chandrapur, be quashed and set aside - demand pertain to the dues for the period prior to 2019 i.e. the period prior to the petitioner's acquisition of the assets of the corporate debtor under the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The liquidation process moved ahead and the petitioner acquired the assets, in due process and now the respondent want to stake its claim for recovery of the amount of tax outstanding ....... + More
- 2024 (10) TMI 983
Condonation of 18 days delay in filing the appeal - Appellant submits that the delay is not 18 days since he is entitled for the benefit of the time when he received the free of cost copy from the NCLT - HELD THAT:- Present is the case where it is not the case of the appellant that he even applied for certified copy of the order. He is relying only on the free of cost copy of the order which stated to be received on 23.07.2024. The Judgment of Hon ble Supreme Court which has relied by appellant itself indicate that the litigant who does not apply for the certified copy cannot then fall back and claim that he was awaiting the grant of the fre....... + More
- 2024 (10) TMI 905
Determination of the period of limitation for filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 - scope of Aggrieved Person - Principle of Estoppel by Conduct - HELD THAT:- Admittedly, because the Appellant has not disputed the fact of email communications being made to him or generated from his email address during the course of the proceedings of CIRP, there will be a deeming presumption of knowledge and if the fact of knowledge is not denied by the Appellant by a specific pleading to that effect, in that eventuality he cannot be deriving the benefit of extension of limitation as a consequence of the Covid-19 si....... + More
- 2024 (10) TMI 834
Legality of the suspension of the petitioner's registration as a Resolution Professional (RP) - contravention of the provisions of Section 30 (2) (b) and (e), 208 (2) (a) and (e) of IBC - lack of due diligence by the petitioner in verifying the Resolution Plan - non-intimation of the claim of KCIL by failing to reply to the specific queries made by it to the RP - HELD THAT:- There was sufficient basis for the IBBI to issue the show cause notice to the petitioner. Its adjudication thereafter by the Disciplinary Committee is principally based on the findings recorded by NCLAT. While adjudicating the show cause notice, the Disciplinary Comm....... + More
- 2024 (10) TMI 833
Maintainability of Section 7 application - non-payment of debt - debt due and payable - whether in the given facts of the case the application under Section 7 of IBC filed by the Appellant was maintainable against the Corporate Debtor? - HELD THAT:- This issue of financial contract being a sine qua non for establishing a financial debt has been well settled in a judgement of this Tribunal in Agarwal Polysacks Ltd. vs K. K. Agro Foods Storage [ 2023 (11) TMI 832 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI ] wherein after going into Regulation 8(2) of Insolvency and Bankruptcy Board of India (Insolvency Resolution P....... + More
- 2024 (10) TMI 832
Commencement of look back period beyond two years u/s 43 of IBC - related party transaction - HELD THAT:- In Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd Vs Axis Bank Ltd and Others, [ 2020 (2) TMI 1259 - SUPREME COURT ], the Hon ble Supreme Court held ' The extent of relevant time is different with reference to the relationship of the beneficiary with the corporate debtor inasmuch as, for the persons falling within the expression related party within the meaning of Section 5 (24) of the Code, such period is of two years before the insolvency commencement date whereas it is one year in relation to the person other ....... + More
- 2024 (10) TMI 831
Rejection of liquidation application filed by the Resolution Professional for liquidation of the Corporate Debtor as recommended by the Committee of Creditors - wrong action of the Appellant in advising wrong insurance policy which was for a completed project against the policy required by the Corporate Debtor for a project which was under implementation. Whether the Adjudicating Authority can discard the recommendation of the CoC and rather give its own directives overriding the commercial wisdom of the CoC? HELD THAT:- The Adjudicating Authority was lured by the fact that the Resolution Plan submitted by the Respondents was more than 20 ti....... + More
- 2024 (10) TMI 830
Rejection of claim of the Appellant to be treated on par with other Financial Creditors and to make the Appellant eligible for distribution of claims as per Resolution Plan - requirement to treat the appellant as equity shareholder by the Adjudicating Authority while approving the resolution plan - discrimination of appellant vis- -vis other Financial Creditors. Whether the appellant has been treated as an equity shareholder by the Adjudicating Authority while approving the resolution plan? - HELD THAT:- Both the CoC and Adjudicating Authority has treated the appellant as unsecured Financial Creditor. There are two entries in the category of....... + More
- 2024 (10) TMI 829
Admission of section 7 application - Appellant has submitted that the Adjudicating Authority has still not dealt with the objections/contentions raised by it before it on the issue that there is no default on the part of the Appellant for which the application under Section 7 could have been admitted - HELD THAT:- Once the Adjudicating Authority has taken into consideration the pleadings and evidence and the contentions raised by both the parties recording the finding only that it has looked into the documents, therefore, it has come to the conclusion that the default has been committed is not sufficient. This case requires a relook by the A....... + More
- 2024 (10) TMI 828
Rejection of Resolution Plan acceptance by Adjudicating Authority - Appellant submits that there was no time prescribed for submission and Resolution Professional could have submitted before 12:00 PM - HELD THAT:- There are no substance in his submission as time mentioned for submission of plan in RFRP was 17:00 Hrs. When the time was extended from 27.05.2023 to 03.06.2023, the time for submission of plan shall remain the same. Admittedly, the Appellant attempted to submit the plan after 17:00 Hrs. 03.06.2023. When the time was extended, the Appellant took risk in submitting the plan at last hours that too after 17:00 Hrs. There are no reaso....... + More
- 2024 (10) TMI 827
Violation of principles of natural justice - it is argued that the impugned order is non- speaking and arbitrary as the Appellants have not been given fair opportunity to present their case - maintainability of combined application under Sections 43, 45, 66 of IBC - transaction audit report was not made available to the Appellant - HELD THAT:- It is not in dispute that total claim admitted in the resolution plan was Rs. 2351.97 Lakhs including claim of the financial creditors of Rs. 2277.80 Lakh and claim of the Operational Creditor of Rs.74.17 Lakhs. It is also not in dispute that the CoC in its second meeting held on 14.02.2020 appointed A....... + More
Case Laws - PMLA
- 2024 (10) TMI 1406
Availability of statutory remedy under Section 8 of the Prevention of Money Laundering Act, 2002 - Refund of money deposited with interest - HELD THAT:- This Court has not gone into the merits of the claim, which shall be considered by the court concerned in accordance with law and in accordance with the merits of the case, without being influenced by any observation made by this Court in this order. Certified copy of this order along with claims shall be filed before court concerned within ten days. The decision shall be taken by the court concerned on the claim in accordance with law and on the basis of material brought before the court by....... + More
- 2024 (10) TMI 1405
Grant of regular bail - Money Laundering - proceeds of crime - scheduled offence - offence of cheating and criminal conspiracy - HELD THAT:- For consideration of the bail application under PMLA, 2002 the Court need not go deep inside the merits of the case but should consider the prima facie material against the accused in the case. The Hon ble Supreme Court in the matter of Vijay Madanlal Chaudhary case [ 2022 (7) TMI 1316 - SUPREME COURT] has held that ' The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability o....... + More
- 2024 (10) TMI 1352
Grant of regular bail - Money Laundering - proceeds of crime - scheduled offence - offence of cheating and criminal conspiracy - It was held by High Court that 'It is an organized crime having various facets of its complexion, therefore, further considering the provisions of Section 45 of the PMLA, 2002 this Court is satisfied that there are reasonable grounds for believing that the applicant is involved in the offence and he is likely to commit any other offence while on bail, it is not required to grant bail to the applicant.' - HELD THAT:- Applications for exemption from filing c/c of the impugned judgment, official translation an....... + More
- 2024 (10) TMI 1351
Seeking grant of Regular bail - creating fraudulent documents for availing LC facility from the banks - manipulating accounts to inflate stock-in-transit and create bogus debtors - Section 447 of Companies Act, 2013 and Sections 409, 467, 468, 471, 120B IPC - HELD THAT:- It is noted that the investigation was initiated in the year 2019 and the prosecution has named 156 accused persons and cited 82 witnesses. There are 2.5 lac pages of documents which need to be analysed. Learned Special Judge took cognizance of the supplementary chargesheet vide order dated 26.07.2024. It is also observed that in the supplementary complaint dated 08.03.2024,....... + More
- 2024 (10) TMI 1071
Maintainability of petition - availability of alternative remedy of appeal - Seeking to issue a Writ of Certiorari by calling for the records - Money Laundering - scheduled offences - attachment of the immovable property - HELD THAT:- Admittedly, in the instant case, on the complaint filed by the competent authority under sub-section (5) of Section 5 of the PML Act, the Adjudicating Authority i.e, respondent No.4 in exercise of powers conferred under sub-Section (3) of Section 8 of the PML Act, has passed the impugned order dated 30.09.2022 in Original Complaint No. 1738 of 2022 confirming the Provisional Attachment order No.11 of 2022 passe....... + More
- 2024 (10) TMI 904
Money Laundering - proceeds of crime - predicate offence - diversion of Rs. 1530.99 crores from the loan amount for a purpose other than it was sanctioned - power to arrest - reasons to believe - HELD THAT:- The issue regarding providing reasons to believe to the person being arrested by ED has been dealt with expansively by the Hon ble Supreme Court in ARVIND KEJRIWAL VERSUS DIRECTORATE OF ENFORCEMENT [ 2024 (7) TMI 760 - SUPREME COURT] , wherein it has been held that it is difficult to accept that the reasons to believe, as recorded in writing, are not to be furnished, and the requirements in Section 19 (1) PMLA, are the jurisdictional con....... + More
- 2024 (10) TMI 681
Seeking grant of bail - Money Laundering - scheduled offences - long incarceration under Section 436A of the CrPC - whether twin conditions of Section 45 of the PMLA Act are fulfilled - effect of the twin conditions on the entitlement of the Applicant in getting bail - HELD THAT:- It is required to be noted that the Supreme Court in the case of Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT ] considered the applicability of Section 436A of the CrPC which is concerning the maximum punishment for which an under trial prisoner can be detained to the offence punishable under PMLA, in view of Section 45 of PMLA imposing twin conditi....... + More
- 2024 (10) TMI 570
Money Laundering - scheduled offences - Proceeds of crime - amassing huge assets disproportionate to his known source of income - burden of prove - offences under Sections 120B, 420 and 472 of IPC and offences under Sections 7, 9 and 13 of the Prevention of Corruption Act, 1988. Whether any prima facie materials are made available against the petitioner in the complaint filed or not? - HELD THAT:- The expression money-laundering , ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal economy of the country. However, Section 3 has a wider reach. The offence, as defined, cap....... + More
- 2024 (10) TMI 506
Seeking grant of bail - Money Laundering - predicate offences - amass of assets disproportionate to known sources of income - twin test contemplated u/s 45 of the PMLA satisfied or not - HELD THAT:- Since the check period extends from 12.01.2011 to 31.08.2020, offences have been registered against the applicant under the PC Act, as it stood prior to the amendment of the year 2018 as also post-amendment - the offences have been registered in the predicate offence under the FIR as per Section 13 (2) read with Section 13 (1) (e) of the PC Act (prior to amendment in the year 2018) and Section 13 (2) red with Section 13 (1) (b) of the PC Act (pos....... + More
- 2024 (10) TMI 461
Money Laundering - validty of FIR - prosecution complaint quashed - Whether when the prosecution complaint filed by the Enforcement Directorate had been quashed by the Supreme Court, would the statements made under Section 50 of the PML Act, 2002 of various witnesses continue to form the basis of F.I.R. which was to be lodged on the basis of the communication passed on to the State under Section 66(2) of the PML Act? - HELD THAT:- When on the date when the ED had communicated to the State of Uttar Pradesh on 28.7.2023 (purportedly under section 66(2) of the PML Act, 2002) then on that date the prosecution complaint was very much surviving an....... + More
- 2024 (10) TMI 460
Seeking grant of Regular Bail - cattle smuggling was happening from India to Bangladesh by paying illegal gratification to BSF personnel deputed on the Border - section 439 of Criminal Procedure Code 1973 (Cr.P.C.) read with section 45 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The guarantee of Personal liberty of every individual envisioned by Article 21 of the Constitution of India, which cannot be curtailed except by due process of law. The fundamental principle of bail is the rule and jail is exception , has been time and again emphasized by the Apex Court and other Courts and has been recently reiterated in the case o....... + More
- 2024 (10) TMI 459
Money Laundering - scheduled offence - proceeds of crime - whether appeal is bad for non-joinder of Government of Odisha as a necessary party as the land belongs to Government of Odisha which is given on lease to the Appellant Trust? - essential ingredients of attachment of property u/s 5(1) of PMLA satisfied or not - no reason to believe that the said properties are involved in money laundering - Appellant Trust is a bona fide receiver and had no knowledge of the alleged offence - no prosecution complaint has been filed against the Appellant Trust within 365 days as stipulated u/s 8(3)(a) of PMLA - Appellant Trust was neither named in FIR o....... + More
- 2024 (10) TMI 458
Money Laundering - limitation period for filing of prosecution complaint - provisional attachment of assets - scheduled offence - proceeds of crime - money was siphoned off by diverting the funds to several group companies to hide its true source and to use the funds for other purposes - HELD THAT:- The relevant notification in this regard is GSR 383(E) dated 19.04.2018 and the amended clause came into effect on the date of publication of the notification, i.e., 19.04.2018. Accordingly, the respondent Directorate had 90 days from 19.04.2018 to file the prosecution complaint. As per appellant's own admission, the prosecution complaint in ....... + More
- 2024 (10) TMI 457
Money Laundering - Provisional attachment of assets - scheduled offence - limitation period for filing of prosecution complaint - HELD THAT:- The relevant notification in this regard is GSR 383(E) dated 19.04.2018 and the amended clause came into effect on the date of publication of the notification, i.e., 19.04.2018. Accordingly, the respondent Directorate had 90 days from 19.04.2018 to file the prosecution complaint. As per appellants' own admission, the prosecution complaint in this case was filed on 16.07.2018. It is found that counted from 19.04.2018, the said date was within the limitation period of 90 days. In Sree Sankaracharya U....... + More
- 2024 (10) TMI 446
Money Laundering - scheduled offences - charging of illegal commission - Sale of unaccounted illicit country liquor wherein usage of hologram along with other methods was modus operandi - payment of annual commission by distilleries for operation of cartel, which make out a cognizable offence under Sections 7 and 112 of the PC Act and section 420, 467, 471 and 120B of the IPC - HELD THAT:- It is apparent that the allegations and scope of investigation in both the FIRs are different from each other. The State is conducting investigation regarding allegation of charging of illegal commission, sale of unaccounted illicit country liquor wherein ....... + More
- 2024 (10) TMI 390
Provisional Attachment Order - time limitation - whether it is appropriate to entertain the present writ petition against the Provisional Attachment Order (PAO) issued by the Directorate of Enforcement on 28.08.2024 before the statutory period of 30 days elapsed when the Adjudicating Authority is required to examine the same under Section 5 (5) of the Prevention of Money Laundering Act, 2002? - HELD THAT:- The Supreme Court, in Vijay Madanlal Choudhary Others v. Union of India Others [ 2022 (7) TMI 1316 - SUPREME COURT ], while examining the constitutional validity of various provisions of the 2002 Act, has also examined the validity of Sect....... + More
- 2024 (10) TMI 389
Money Laundering - Application for quashing of proceeding - predicate offences - petitioner had amassed huge amount of wealth, which could not have been from his known source of income - HELD THAT:- In Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT] , the Hon ble Supreme Court upheld the validity of several salient features of the PML Act. Among other things, it was held there that if a person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money laundering against him. Admittedly, the present proceeding under....... + More
- 2024 (10) TMI 388
Money Laundering - proceeds of crime - the respondent ED are allowed to retain/seize/freeze the documents, digital records, bank accounts etc., seized from the premises of various persons including the present appellant - HELD THAT:- The plea of the present appellant that he is not involved in any offence is without any merit in view of the allegations pointed out by the respondent. However, seeing the fact that prosecution complaint is already filed, the present appellant is entitled to the copies of all relied upon documents/seized material and he has right to apply for release of all un-relied documents (if any), if the same are not requi....... + More
- 2024 (10) TMI 387
Money Laundering - Proceeds of crime - scheduled offences - respondent ED are allowed to retain/seize/freeze the documents, digital records, bank accounts etc., seized from the premises of various persons including the present appellant company, during the search conducted on 07.04.2017 - Sections 420 120B of the Indian Penal Code, 1860 and Section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 - principles of natural justice - HELD THAT:- The fact that present appellant is neither named in the CBI/police charge-sheet case, nor in the prosecution complaint filed by respondent ED is no ground to release the said amount, as ther....... + More
- 2024 (10) TMI 386
Money Laundering - predicate offence - provisional attachment of immovable properties - source of income - invocation of Section 5(1) of the Act of 2002 - HELD THAT:- It is a fact that the appellant Nirmal Chandra Rout had disclosed a very meagre income of Rs. 5,74,880/- in the Assessment Years 2008-09 to 201213 but invested in many properties to the tune of more than Rs. 20,87,700/-, apart from his investment in the construction of one-storied building. No document was produced to prove loan to purchase the properties of the worth more than his income. Even the wife, who is also appellant before us in whose name some of the properties have ....... + More
Case Laws - SEBI
- 2024 (9) TMI 1499
Commercial transactions undertaken by and between private entities involving acquisition of shares of a life insurance company - Allegations of fraudulent acts and undue profits made by certain entities in the purchase and sale of equity shares of a life insurance company - HELD THAT:- This Court is of the view that where a field is regulated and where an appropriate regulator has either already taken note of and addressed the transaction or is investigating the said transaction, the Court in writ jurisdiction should not interfere. In such a situation, the regulator must be allowed to do its job. Writ of Mandamus being a public law remedy ma....... + More
- 2024 (9) TMI 845
Offence u/s 205(1A) and 205A of Companies Act - criminal proceedings under Section 482 of Cr.P.C - accused company declared a dividend of but failed to deposit the amount in a separate bank account within five days and did not disburse it to the shareholders within thirty days - respondent-M/S. Securities and Exchange Board of India (SEBI) admits that the amount has actually been paid. He, however, submits that under the statutory provisions, the appellants do not have an escape and therefore, the High Court [ 2022 (5) TMI 1652 - KARNATAKA HIGH COURT] has rightly declined to quash the proceedings. HELD THAT:- Considering the facts and circum....... + More
- 2024 (9) TMI 250
Siphon off funds from the Reliance - public listed company by structuring them as loans to credit unworthy conduit borrowers - disproportionate lending - Moving of funds from the public listed company to non-descript and financially weak privately held companies connected with the Reliance ADA group - HELD THAT:- Credit defaults in financing business are not by themselves unusual or suggestive of fraudulent activity. Inter-corporate loans or related party transactions (subject to disclosures and compliance with law) are also not per se illegal or suspicious. However, the facts and circumstances of this case clearly indicate that the defaults....... + More
- 2024 (8) TMI 1345
Routing of funds to the Indian Securities Market by Noticee/Mr. Vijay Mallya -Violation of SEBI Act and PFUTP Regulations - financial route i.e. the FII route was used by the Noticee to trade in the Indian Securities market by concealing his identity - layering the transactions in the names of various overseas registered entities and opening accounts in their names in UBS-UK Bank, even though the Noticee himself was the actual beneficial owner of each of these front entities HELD THAT:- Noticee in abusing the framework of the FII Regulations and dealing in securities of listed companies of his group of companies in India, indirectly, in a fr....... + More
- 2024 (8) TMI 1283
Validity of criminal proceedings once settlement before the SEBI on the adjudication side concluded - allegation of fraudulent activities committed in the Initial Public Offering (IPO) of the shares - Jurisdiction of Single Judge OR Division Bench - whether the respondent had made out a case for quashing the proceedings will be independently decided by the Division Bench which will now hear the matter on remand? - HELD THAT:- The first round of proceedings arising out of Writ Petition [ 2018 (2) TMI 2119 - BOMBAY HIGH COURT] was heard and disposed of by the Division Bench, with the Division Bench rejecting the contention of the respondent an....... + More
- 2024 (8) TMI 1282
Freezing of demat accounts held by the petitioner with NSDL are freezed at the behest of BSE / NSE under the directives of the SEBI on account of an alleged default of Shrenuj in compliance of the SEBI (LODR) Regulations - HELD THAT:- The petitioner, a practicing gyneacologist, did not exceed his professional position, to take interest in the formation of Shrenuj or to promote or manage its day-to-day affairs. Also, after the incorporation of the company and constitution of the Board of Directors, the status and role of the petitioner as a promoter had come to an end. Hence, the obligation of non-submission of Financial Results and non-compl....... + More
- 2024 (8) TMI 856
Trading based on the stock recommendations given by Guest Experts appearing on Zee Business Channel - Sharing of non-public information regarding recommendations, by Guest Experts to Profit Makers in advance - Pattern of correlation of trades of suspect entities with recommendations made by guest experts - HELD THAT:- Profit generated in the accounts of the Profit Makers are quite substantial, when compared with the profits on trades otherwise executed in the accounts of these Profit Makers. It is also seen that from the trades that are observed to have been executed based on the advantage of advance receipt of information about recommendati....... + More
- 2024 (8) TMI 798
Offences by companies - liability of directors/person responsible - resignation of the present petitioners - Criminal Complaint pending qua the petitioners - HELD THAT:- As petitioners has placed on record the certified copy of Form-32, which had been placed before the learned Trial Court by SEBI itself. The Form-32, as placed on record, clearly reflects that the petitioners had resigned on 23.02.1998, which was much before the cause of action alleged to have arisen in the present complaint. There is no other record. Respondent no. 2 does not dispute the authenticity of the said document as the same has been filed by them. The contention of ....... + More
- 2024 (8) TMI 797
Violation of securities laws - unregistered investment advisory - activities of rendering investment advisory services or any other services had been carried out without obtaining the mandatory registration from the SEBI, as statutorily required - HELD THAT:- Noticee no. 1 has admitted providing investment advisory services to at least 290 unique investors during the period March 11, 2020 to August 29, 2023 and through these activities of providing investor advisory for which no registration was obtained from SEBI, the Noticee no. 1 has earned more than INR 12 Crore as fee from the clients. As the prima facie violation on the part of the Not....... + More
- 2024 (8) TMI 796
Collective Investment Scheme ( CIS ) - Scheme / arrangement operated through the Growpital platform - whether the Entities have prima facie violated any provisions of SEBI Act , CIS Regulations and SEBI -PFUTP Regulations - HELD THAT:- Prima facie the instant scheme / arrangement offered / operated through the Growpital platform falls within the definition of CIS. The activities of Growpital, as brought out from the various materials described above, show that prima facie a CIS is being operated. However, no material is available on record to indicate that any of the Entities involved in the instant arrangement has formed a Collective Invest....... + More
- 2024 (8) TMI 25
Defalcation of the proceeds from the preferential issue - allegation of mis-utilization of the proceeds - inordinate delay in the issuance of the show cause notice - as decided by SAT [ 2023 (7) TMI 1440 - THE SECURITIES APPELLATE TRIBUNAL, MUMBAI] issuance of the preferential issue was known to the stock exchange as well as to SEBI and, therefore, there is no justification for issuance of show cause notice at this belated stage. No penalty could be imposed for the alleged deviation. We also find that there is no charge of defalcation of the proceeds from the preferential issue. HELD THAT:- We do not find any good ground and reason to interf....... + More
- 2024 (7) TMI 935
Liquidation of attached assets - time-bound public auctions - refund of the due amount to all the investors as well as various statutory, foreseen or unforeseen liabilities - Direction to SEBI to liquidate the attached assets in a time-bound manner and disburse the sale proceeds to genuine investors as early as possible - HELD THAT:- The entire process in the case in hand might take more than a year, it seems to us that fixation of monthly honorarium may not be desirable. Similarly, we do not want to leave it for the learned Chairperson or members of the HPSC to fix their own honorarium as it is likely to cause embarrassment to them. Conside....... + More
- 2024 (5) TMI 1227
Condonation of delay in filing appeal - constrained to file the appeal after SEBI had instituted an appeal before this Court against the order of the Securities Appellate Tribunal SAT - HELD THAT:- From a reading of the impugned order, it appears that while the appellants have succeeded on the first issue, an order of remand has been passed on the second issue to the Whole Time Member by SAT. Appellants, submits that, as a matter of fact, after the order of SAT, a notice was issued to the appellants requiring them to file written submissions before the Whole Time Member which they have complied with. However, it has been submitted that no he....... + More
- 2024 (5) TMI 798
Validity of freezing the Demat Accounts of the petitioners by the Calcutta Stock Exchange (CSE) - petitioner no. 1 forms a part of the promoter group as defined under regulation 2 (1) (w) of the Securities and Exchange Board of India (SEBI) (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( 2015 Regulations ) and the family of the petitioners control the management and affairs of the proforma respondent no. 5-Company. HELD THAT:- In the present case, petitioner no. 1 has subsequently issued e-mails to the respondent no. 1, showing his willingness to deposit the fines. Although no such intention appears from the conduct of ....... + More
- 2024 (3) TMI 1183
Recovery proceedings by SEBI - Maintainability of provisions of IBC over the provisions of the SEBI Act - notice was challenged by the appellants on the ground that the same cannot be enforced as the proceedings under the Insolvency and Bankruptcy Code, 2016 and the provisions of the Provincial Insolvency Act, 1920 initiated against the appellants are pending and the orders of interim moratorium have been passed - penalty imposed and sought to be recovered from the appellants by issuing the impugned certificate fall within the meaning of fine , which is excluded under clause (a) of sub-section (15) of Section 79 of IBC and therefore, the int....... + More
- 2024 (3) TMI 1143
Jurisdiction/ Validity of show-cause notice issued u/s 11(1), 11(2)(b), 11(4) and 11(B) of SEBI Act - as submitted show-cause notice is identical to what was issued to the Petitioner on the earlier occasion which came to be adjudicated and on which Petitioner was discharged and exonerated - Petitioner had earlier moved this Court by filing a Petition, however, the same was withdrawn by the Petitioner with liberty to approach the Security Appellate Tribunal and on such Interim Application came to be passed by the Tribunal ordered that in the interest of justice, the Respondent be directed to give an opportunity of a cross-examination and pers....... + More
- 2024 (3) TMI 988
Rejection of Petitioner s Settlement Applications - delay on the part of the Petitioner in making compliances of submission of documents and as per the Settlement Regulations, 2018 and more particularly Regulation 6(1)(b) - Petitioner made a representation to the Respondent requesting the Respondent to consider such documents by condoning the delay, which according to the Petitioner was not attributable to the Petitioner and for reasons which where not in Petitioner s control - HELD THAT:- Certainly there was delay on the part of the Petitioner in not complying with the time lines on submission of the documents, which according to the Petiti....... + More
- 2024 (3) TMI 868
Attachment of Properties - Large-scale irregularities committed by some share brokers in collusion with the employees of Banks and Financial Institutions - diversion of funds from the banks/FIs to the individual accounts of certain brokers - Section 10 of the Special Court (Trial of Offences relating to transactions in Securities) Act, 1992 - HELD THAT:- The entire case of the Custodian regarding subsisting debts of the appellant towards respondent Nos. 6, 7 and 8 was based on a communication received from the Income Tax Department. The appropriate witness to prove such communication would be the official concerned from the Income Tax Depart....... + More
- 2024 (2) TMI 1028
Exit Policy of SEBI - letter issued by SEBI calling upon CSE [Calcutta Stock Exchange] to apply for voluntary exit - Exit policy of SEBI in consonance with the provisions of the SCR Act [Securities Contracts (Regulation) Act] or not? - Was the CSE obliged to apply for continuance of its clearing house business in terms of the SECC Regulations, 2012 ? - Whether steps towards compulsory withdrawal of recognition of CSE suffer from a jurisdictional error and violation of the principles of natural justice HELD THAT:- In the circular issued by the SEBI, it has been stated that the same has been issued in exercise of powers conferred under Section....... + More
- 2024 (1) TMI 1022
Termination of petitioner as a Depository Participant of CDSL[Central Depository Services] - Requirement of meeting the net worth and minimum turnover - petitioners being required to have a turnover of Rs. 3 crores as not adhered - According to CDSL, the termination is in lieu of SEBI-2018 Regulations and more particularly the amendment brought about to the said 2018 Regulations with effect from 23 February, 2022 to Regulation 35 by insertion of a proviso inter alia in regard to a stock broker requiring to have a net worth of Rs. 3 crores within one year from the date of notification of the 2022 amendment to the 2018 Regulations - HELD THAT:....... + More
Case Laws - FEMA
- 2024 (10) TMI 397
Contravention of Section 3(a) of FEMA, 1999 - Appellant acquired and sold various foreign currencies to various persons resident in India - validity of the search and seizure conducted by the Respondent Directorate - Reliance on recorded statements with the independent corroborative evidence in the form of seized documents recovered from the residential premises of the Appellant HELD THAT:- The Appellant has not furnished any evidence to the contrary so as to disprove the statements recorded under oath under Section 37 of FEMA, 1999. The recorded statements with the independent corroborative evidence in the form of seized documents recovered....... + More
- 2024 (10) TMI 396
Imposition of penalty finding Contravention of Section 18(2) of FERA - export only against 06 GR by M/s. Universal Traders and 05 GR by Zen Series though in both cases 10 GR were issued by the Custom Department - HELD THAT:- GRs are issued by the Customs Department when export has to commence and thereby the export material is brought in the bonded area. It results in exports other than in the case of withdrawal of the export so is GR but there is nothing on record to prove it. The Adjudicating Authority has referred to the statement of KVS Ram Mohan, Manager of the Bank recorded on 30.04.2002. As per his statement M/s. Universal Traders fai....... + More
- 2024 (10) TMI 395
Offence under FEMA - Allegation of illegal purchase and sell of foreign currency - Confiscation of seized foreign exchange and Indian currency - Penalty imposed - HELD THAT:- The two Respondents were indulging in illegal business of buying foreign exchange from the local market so as to sell the same to the passengers who were travelling abroad. These passengers would not only buy the tickets from them but also the foreign exchange against Indian currency. It was well organized network since these passengers used to be identified by Shri T. Abdulla under whose instructions the foreign currency used to be handed over to them. Moreover, Shri M....... + More
- 2024 (10) TMI 394
Contravention of Section 3(c) of FEMA - allegations have been made against the appellant for receipt of the payments from various persons as per the instruction of one Abdulla of Abu Dhabi, a person residing outside India without general or special permission of RBI - main argument of the appellant is in reference to the retracted statement relied by the Adjudicating Authority in passing the order - HELD THAT:- We do not find that the impugned order has been passed solely based on the retraced statement. The printout of the mobile owned by the appellant was corroborative evidence to show that appellant was not only having relation with Abdul....... + More
- 2024 (10) TMI 393
Forfeiture of property under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act - Ownership and tenancy rights over the disputed property - alleged that the property in question was acquired out of the illegal earning by Dawood Ibrahim Sheikh - appellant, submitted that the property in question is a rented premises in her hands thus not liable to be forfeited. HELD THAT:- The assessment order reflects as to how the property was occupied by Dawood Ibrahim Sheikh and thereupon huge amount was invested on it. They could not disclose the sources to invest huge amount of Rs.80 lakhs and in absence of which the Income Tax....... + More
- 2024 (10) TMI 392
Violation of Section 6(3)(b) of FEMA and Regulation 5(1) of Regulation of 2000 - delay of 24 days occurred in reporting FDI remittance - Penalty imposed on the appellant company and on the Director individually - HELD THAT:- It is not in dispute that the appellant company failed to make a report of the receipt of the amount of USD 3,09,00,000 within a period of 30 days thereby committed violation of the provisions of FEMA and Regulations. As we refer to the facts of the case pertaining to the amendment in the Act and the excuse taken by the appellant for the delay. It was submitted that online reporting was made effective since 08.02.2016 by....... + More
- 2024 (10) TMI 391
Validity of proceedings under FERA - Violation of Section 9(1)(f)(i) of FERA 1973 - failure to permit the Appellant to cross-examine - HELD THAT:- Suffice it to say that there is sufficient evidence on record for the Ld. Adjudicating Authority to hold that the Appellant was indeed guilty of violating Section 9(1)(f)(i) of FERA 1973 that called for imposition of penalty on him. Adjudicating Authority has recorded a finding that clinching evidence is there to impose penalty on Shri Keshav Bangur and the Appellant. He observed that corroboratory statements of the version of Shri Keshav Bangur were available in the depositions of the Appellant a....... + More
- 2024 (10) TMI 291
Contravention of FEMA - unauthorized direct investment outside India - direct investment in an overseas JV which was not engaged in a bona fide business activity - Contravention of the provisions of Section 6(3) (a) of FEMA read with Regulation 6(2)(ii) of the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004 - as submitted that in the instant case, the appellants adopted the third accepted mode of investment, namely purchase of existing shares of a foreign entity, although on deferred payment basis HELD THAT:- The appellants have raised several pertinent issues during their arguments that the learned ....... + More
- 2024 (10) TMI 229
Priority of secured creditors under SARFAESI Act - attachment by virtue of Section 26 (E) of the SARFAESI Act - respondent No. 3 had mortgaged the subject property in favour of the petitioner in the year 2013-14 much prior to the search conducted by the respondent Nos. 1 2 under Section 132 of the Income Tax Act - HELD THAT:- The claim of the petitioner as against the subject property mortgaged by respondent No. 3 in favour of the petitioner is as long back as in year 2013 would have an over riding effect in respect of all subsequent claims including the alleged claims of respondent Nos. 1 2 which was only in the year 2017 as held by the Mad....... + More
- 2024 (9) TMI 1552
Depositing 50% amount, as a pre-condition for entertaining the Application for Condonation of Delay - scope of of statutory provisions under the Maharashtra Co-operative Societies Act and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. HELD THAT:- The main proceedings before the DRT u/s 17 would have been registered and the DRT would have then commenced the hearing on the merits of the application filed u/s 17. DRAT only had to consider whether the order of the DRT can be construed to be perverse and erroneous so as to cause interference. In view thereof and considering the law as is ....... + More
- 2024 (9) TMI 1036
Violation of the provisions of the FEMA - petitioner is a citizen of United States of America and Overseas Citizen of India [ OCI ] Cardholder, and evidently, he purchased vast tracks of agricultural property located in India without RBI permission violating FEMA regulations - compounding proceedings were initiated - Penalty Computation - petitioner has urged that the respondent/RBI failed to appreciate that the petitioner bonafidely purchased the said agricultural property and despite complying with the directions of the respondent/RBI thereby selling the properties an Indian Citizen, the petitioner has been levied an exorbitant penalty wit....... + More
- 2024 (9) TMI 1035
Contravention of Sections 9(1)(b) 9(1)(d) - receiving payments from persons resident in India by order of person resident outside India and by making payments to persons resident in India by order of person resident outside India, without the general or special exemption of RBI - Alleged breach of principles of natural justice in the adjudication process. HELD THAT:- Adjudicating Authority has considered the subsequent retraction and recorded its opinion before accepting the statements. We also find that the confessional statements have been corroborated by other independent and cogent evidence as have been brought out in the paragraphs from....... + More
- 2024 (9) TMI 1034
Order passed u/s 19(1) of FEMA imposing penalty for contravention of Section 42(1) of FEMA - transactions were carried out in violation of various provisions of FEMA - liability of person who, at the time of contravention, was in-charge of, and responsible to the company for conduct of business of the Company - HELD THAT:- There is a deeming Clause to hold in-charge to conduct the business of the Company liable for the punishment. The Proviso, however, exclude those who submit that the contravention was without their knowledge and due diligence to prevent such contravention was taken. The case of the Appellant is that he was not Incharge for....... + More
- 2024 (9) TMI 1033
Confiscation of Foreign and Indian Currency recovered from the business premises - Imposition of penalties for contravention of FEMA, 1999 - Allegations of illegal dealings in foreign exchange - FFMC failed to apply with the conditions laid down by RBI in terms of Section 10 47 of FEMA, 1999 - penalty of Rs.5 lakhs was imposed on appellant Sumesh Duggal and Rs.15 lakhs on M/s Duggal Forex Pvt. Ltd HELD THAT:- As far as cash of Rs. 11,00,000/- is concerned, the same is duly explained by the appellants by way of tendering the statement of account of M/s Duggal Forex Pvt Ltd. which shows drawal of Rs. 5,00,000/- by way of cheque no. 343741 for ....... + More
- 2024 (9) TMI 1032
Applicability of FERA provision to not resident in India - transfers to non-resident convertible rupee accounts enabled payments to be made in Foreign Exchange to a person resident outside India - Appellant Bank has been charged for contravention of Section 64 (2) read with Section 6 (4), Section 6 (5) and Section 49 73 (3) of FERA - Contraventions in terms of Section 64 (2) of FERA for having abetted the Standard Chartered Bank, Mumbai. HELD THAT:- Section 6 (4) and 6 (5) and 49 73 (3) of FERA require that the banks which are ADs shall not engage in any transaction involving any foreign exchange which is not in conformity with the terms of ....... + More
- 2024 (9) TMI 1031
Contravention of Sections 8 (3) r/w 8(4) and 9(1) (b) of FERA - illegal foreign exchange remittance abroad in the garb of charges being paid for the imports of the goods which never occurred - Composite penalty for contraventions. HELD THAT:- We find that Sections 8(3) and 8(4) of FERA are worded in terms of a person and there is no usage of importer . Similarly, Section 9(1)(b) is also worded in terms of a person . In the present case the Respondent Directorate had various statements before it, which conveyed that more than one concern was being controlled and owned by the Appellant Shri R.K. Verma. The investigations evoked suspicions as t....... + More
- 2024 (9) TMI 1030
Imposition of penalties under FEMA - Foreign currency confiscation as seized from the premises of the Appellant - Tribunal directed the Appellant to deposit 15% of the amount of penalty imposed and furnish bank guarantee for the remaining 85% as pre deposit - Appellant argued that the principles of natural justice have been violated in as much as cross examination of the Departmental Officers and witnesses was not permitted HELD THAT:- During the search of the residential premises a deposit slip of an overseas account along with a blank cheque book of HSBC Bank, Hongkong were seized. The seized deposit slip showed a deposit of US$ 100 in the....... + More
- 2024 (9) TMI 939
Contravention of Section 8(1) and 9(1)(f)(i) of the Foreign Exchange Regulation Act, 1973 - receiving payments in foreign exchange during 1996-97 through fake export documents and without any export of goods to overseas parties - Adjudicating Authority finding contravention in the hands of the appellant imposed the penalty of Rs.2 lakhs for contravention of Section 8(1) and Rs.3 lakhs for contravention of Section 9(1)(f)(i) of the Act of 1973. HELD THAT:- Show Cause Notice was given in the year 2002 alleging contravention of the provisions of the Act of 1973. A period of more than 22 years has already passed from the date of Show Cause Notic....... + More
- 2024 (9) TMI 938
Contraventions of FERA - request for separate hearing due to non-membership in Kamani family - Violation of natural justice in passing the order - Denial of opportunity of hearing to A.P. Parekh - HELD THAT:- The perusal of the record does not show that the appellant was ever given an opportunity of hearing subsequently. It is in a given case where his case was separated thus we find that the plea taken by the appellant in his appeal is partly corroborated by the impugned order. A case is made out to remand the matter back to the Adjudicating Officer/Authority for hearing of the case afresh so that the appellant may get appropriate opportuni....... + More
- 2024 (9) TMI 707
Validity of detention order of the detenu - Detenu was engaged in illegal transactions by way of purchase and sale of illegally collected foreign currencies from NRIs and other foreign exchange dealers - as argued the material against the detenu could not have led any reasonable person to come to the conclusion that there was a case made out against the detenu to detain him AND Detaining Authority has not applied his/her mind to the material in proper perspective resulting in an unsustainable order of preventive detention. Whether non-supply of the statements of Ms. Preetha Pradeep has affected the right of the detenu to make an effective re....... + More
Case Laws - Service Tax
- 2024 (10) TMI 1465
Wilfull failure to pay tax and suppressed the value of service in the returns filed in ST-3 - Suppression for mere non-declaration of details - Invocation of extended period of limitation in terms of proviso to Section 73 of the Finance Act, 1994 - whether the appellant can be fastened with a liability to pay service tax and penalty? HELD THAT:- The service tax of banking and financial service was altered with effect from Finance (No.2) Act, 2004 dated 10.09.2004 by Substituting the definition of banking and other financial services . Prior to the aforesaid period, the definition read differently. The petitioner has paid the Service Tax on 0....... + More
- 2024 (10) TMI 1464
Demand of Service Tax dropped by the CESTAT on the income shown as non-taxable in Financial Data Summary Sheets (FDSS) - Whether the Respondent / Assessee is liable to pay Service Tax on difference in figure of 'Income' in Form ST-3 and Form 26AS? - HELD THAT:- As functioning of the respondent as a Multi-Modal Transport Operator and who is stated to have made payments toward customs duty, air freight, ocean freight and surcharges for and on behalf of various clients. From the material which was gathered in course of the enquiry as well as the verification details provided, the authorities had found that the payments made by the respo....... + More
- 2024 (10) TMI 1463
Reversal of CENVAT Credit - 'total Cenvat credit taken' instead of 'common Cenvat credit taken' for the purpose of reversal of credit under Rule 6(3A) (c) (iii) of the Cenvat Credit Rules, 2004 - the term 'total Cenvat Credit taken' used in the provision of Rule 6(3A)(c)(iii) of Cenvat Credit Rules, 2004 is unambiguous or not - Whether the 2nd respondent is correct in placing reliance on the Stay Order of the Hon'ble Tribunal in the case of Thyssenkrupp Industries [ 2014 (10) TMI 476 - CESTAT MUMBAI ] to hold that only 'total Cenvat credit taken' should be considered in the formula under Rule 6(3A)(c)(iii)....... + More
- 2024 (10) TMI 1462
Non-payment/ short payment of service tax - demand of service tax + Education Cess+ Secondary Higher Education Cess - HELD THAT:- Appellant in the present case even before the Original Authority did not contested anything in the show cause notice except for certain computations - The findings or facts rendered by both the authority no nonpayment/ short payment of service tax cannot be faulted with. Even as per the calculation chart submitted by the appellant they have admitted that short payment of service tax to the tune of Rs 5,44,492/- That being so, the quantum of short payment needs to be re-determined after allowing the deduction of th....... + More
- 2024 (10) TMI 1461
Interpretation of N/N. 01/2006-ST for availing abatement on services provided - Department has entertained a view that the service of the insulation provided by the appellant falls outside the preview of the eligibility criteria for the abatement as per Notification No. 01/2006-ST dated 01.03.2006 as amended - HELD THAT:- The matter is no longer res Integra as the issue at hand has already been decided by the Tribunal in the similar circumstances in favour of the appellant. The relevant extract of the order in case of RUDRA ENGINEERING VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VADODARA-I [ 2024 (2) TMI 1450 - CESTAT AHMEDABAD] has held that ....... + More
- 2024 (10) TMI 1404
Interpretation of statute - Rule 4(7) and Rule 11 of Cenvat Credit Rules - Applicability of Rule 6 of Cenvat Credit Rules in recovering cenvat credit for unsold carpet area - HELD THAT:- The appellant had availed cenvat credit of service tax paid on input services when the output service was subjected to levy of service tax. It is, therefore, found that availment of cenvat credit was in accordance with law. It is also noted from the proceedings that before receipt of Occupancy Certificate on 22.01.2016 appellant had utilized the entire cenvat credit of Rs.2,51,02,850/- towards payment of service tax on output service. Service Tax Law does no....... + More
- 2024 (10) TMI 1403
Non discharge of service tax - invocation of the extended period or the demand of service tax - Penalties imposed u/s 77 and 78 of the Finance Act, 1994 - appellant was providing taxable services under the category of Maintenance Repair Service, Man Power Recruitment Supply Agency Service to the service recipient HELD THAT:- Both the authorities below have misdirected themselves as there was no contest by the appellant to the invocation of the extended period or the demand of service tax. Appellant has suo motto computed the service tax due and has paid the said amount. As pleaded his lack of knowledge and status as petty contractor not havi....... + More
- 2024 (10) TMI 1402
Non discharge of service tax - Appellant was providing taxable services under the category of Maintenance Repair Service, Man Power Recruitment Agency Service Construction (Commercial Industrial) Services to the service recipient - Demand of service tax + Education Cess + Secondary Higher Education Cess - HELD THAT:- As the appellant was well aware that he was providing taxable services and short paid the service tax, even after issuing invoices indicating the services tax payable and collecting the same from the service recipient. They were not filing the ST-3 returns on time in the manner as specified in law. They have suppressed the infor....... + More
- 2024 (10) TMI 1401
Failure to pay the service tax on the full amount of consideration received - services of construction of complex service - disputed period is from 01/2008 to 08/2010 - HELD THAT:- Attention invited to an order of this bench in the case of M/s. Shanti builders wherein this bench vide Final Order No. 40257/2023 dated 06.04.2023 [ 2023 (4) TMI 350 - CESTAT CHENNAI] has held that no service tax could be levied under construction of residential complex services prior to 01.07.2010. The confirmation of the demand of Service Tax cannot sustain, nor could there be any scope to impose penalties under Sections 77 78 of the Financial Act, 1994. Theref....... + More
- 2024 (10) TMI 1400
Service Tax Exemption under Notification No. 25/2012-ST denied - Demand of Service Tax along with interest and imposed penalty - amount on providing services of laying of cable, under or alongside road, under NOFN project - as per Respondent amount was neither shown by the appellant in their ST-3 returns nor had any service tax been paid by them on such services provided by them to M/s BSNL (BBNL) - appellant submitted that the appellant had rendered services to BBNL/BSNL towards execution of the NOFN project, which are exempt from service tax by virtue of Sl. No. 12 of Notification No. 25/2012-ST dated 20.6.2012 Whether the appellant is eli....... + More
- 2024 (10) TMI 1399
CENVAT Credit in respect of input services as well as on capital goods on the basis of advisory notes - Invocation of the extended period of limitation under the Finance Act - As alleged audit noticed that BSNL had mainly availed CENVAT Credit on towers falling under Chapter 73 of the Central Excise Tariff, which would not be covered under the definition of the capital goods as defined under rule 2(a) of CENVAT Credit Rules, 2004 - HELD THAT:- The show cause notice alleges that BSNL had availed CENVAT credit on tower materials. Neither the show cause notice nor Annexure-A to the show cause notice, except for a bald allegation, substantiate t....... + More
- 2024 (10) TMI 1350
Challenge to Notification Nos. 14/2017-ST, 15/2017-ST and 16/2017-ST all dated 13 April 2017 issued by respondent no. 1 and Circular No. 206/4/2017-ST dated 13 April 2017 issued respondent no. 2 - liability to pay Service-tax under the Reverse Charge Mechanism on Ocean Freight paid by the petitioner on import of the goods - HELD THAT:- The challenge to these very notifications and circular had come up for consideration before the Gujarat High Court in case of MESSRS SAL STEEL LTD. 1 OTHER (S) VERSUS UNION OF INDIA [ 2019 (9) TMI 1315 - GUJARAT HIGH COURT ], and by a detailed judgment, in paragraph 58, the said notifications and the circular ....... + More
- 2024 (10) TMI 1349
Liability of appellant to discharge the service tax under reverse charge mechanism - transportation of imported goods by a vessel (Ocean Freight) from the place outside India to custom station in India - HELD THAT:- This issue is no longer res-integra as the same is settled by the Hon ble Gujarat High court in the case of MESSRS SAL STEEL LTD. 1 OTHER (S) VERSUS UNION OF INDIA [ 2019 (9) TMI 1315 - GUJARAT HIGH COURT] wherein the Hon ble high court has held that ' The Notification Nos. 15/2017- ST and 16/2017-ST making Rule 2(1)(d) (EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification N....... + More
- 2024 (10) TMI 1348
Short payment of service tax - interest for the delayed payment of service tax - Penalty - Maintenance Repair Service - Man Power Recruitment Supply Agency Service - extended period of limitation - non-application of mind - violation of principles of natural justice - HELD THAT:- The Original Authority has determined the tax due from the appellant to be less than the amount claimed to be payable by the appellant as per the calculation chart submitted by the appellant, and paid by them. Having noted so he went on to invoke the extended period of limitation, demanded interest and also imposed penalties under Section 77 and 78 of the Act. The o....... + More
- 2024 (10) TMI 1347
Recovery of service tax with interest and penalty - quantification of service tax liability and deductions claimed by the appellant - suppression of taxable value - HELD THAT:- Interestingly, appellant in the present case even before the Original Authority also did not contested anything in the show cause notice except for certain computations. The appellant do not dispute the liability to pay the service tax and has in fact admitted the liability to pay the service tax. In view of the admission of liability to pay the service tax as per show cause notice, we are left with only one issue. Appellant has before the original authority submitted....... + More
- 2024 (10) TMI 1346
Levy of service tax on Business Support Service - Denial of CENVAT Credit on club membership renewal fees in terms of Rule 2(l) of the CENVAT Credit Rules, 2004 - Suo-Moto recredit to the CENVAT account taken on account of service tax paid twice or in excess of the service tax liability done without documentary evidence as prescribed under Rule 9 of the CENVAT Credit Rules, 2004 - Imposition of penalty for non-payment of Service Tax under the category of Intellectual Propery Service other than copyright - time limitation. Levy of service tax on Business Support Service - HELD THAT:- The appellant and EPML were operating in two completely dif....... + More
- 2024 (10) TMI 1345
Extended period of limitation - suppression of facts or not - liability of sub-contractor - to pay Service Tax on supply of labour services - manpower recruitment or supply agency service - revenue neutarlity - HELD THAT:- The Circular No.96/7/2007-S.T. dated 23.08.2007 has been issued clarifying that sub-contractors are required to pay Service Tax even when the main contractor has paid Service Tax on the entire amount, since the sub-contractor will be eligible to take CENVAT Credit thereon. Accordingly, it is observed that after 23.08.2007, sub-contractors are liable to pay Service Tax even if the main contractor pays the Service Tax on the....... + More
- 2024 (10) TMI 1344
Payment of differential service tax - Cleaning Services - allegation in the SCN and the impugned order is general in nature and there is no specific allegation which warrants levy of Service Tax - HELD THAT:- The case at hand shows that the SCN was issued on assumptions and presumptions and hence cannot be sustained. A similar matter was examined by a Division Bench of this Tribunal, in Balaji Insulations India Pvt. Ltd. [ 2024 (6) TMI 771 - CESTAT MUMBAI ] which covers the legal issues involved in this case, where it was held that ' while determining value of taxable service under Section 67 ibid, such aspect as to the activities which ....... + More
- 2024 (10) TMI 1343
Non-payment of differential tax - short reporting of taxable services - whether in the facts of the case, the credit claimed to have been adjusted against the service tax liability by the appellant can be allowed or otherwise? - HELD THAT:- In the facts of the case, it is obvious that they are not disputing the liability as such and infact they have paid certain amount through challan way back in 2016 itself i.e. much before the detection of non-payment by the Audit Team. Therefore, there was no intention as such not to pay the service tax liability on the said unreflected amount of provision of services. Apparently, they were under the impr....... + More
- 2024 (10) TMI 1342
Levy of service tax - Director s remuneration in the form of commission as per percentage of total profit of the company - reverse charge mechanism - HELD THAT:- There is no dispute that director was paid the commission amount as a part of director s remuneration and the amounts paid as salary and on such amount the TDS was also deducted under the salary head. Therefore, any amount paid to the director in the form of director s remuneration which is commission of company s profit, the same is not chargeable to service tax under reverse charge basis as held in the case of ALCHEMIE ORGANICS VERSUS C.C.E S.T. -VALSAD [ 2024 (6) TMI 1413 - CESTA....... + More
Case Laws - Central Excise
- 2024 (10) TMI 1460
Justification of reduced penalty - setting aside refund sanction by Assistant Commissioner due to penalty reduction - HELD THAT:- A perusal of section 11AC of the Central Excise Act shows that the section itself provides for penalty equal to 100% and further provides that if the demand is paid along with penalty within 30 days of the order, the penalty shall be only 25%. Thus, both the penalty of 100% and its reduction to 25% on fulfilment of some conditions are mandatory. Even if penalty of 100% is imposed and it is not mentioned in the order in original that the penalty shall stand reduced to 25% if the duty, interest and penalty were paid....... + More
- 2024 (10) TMI 1459
Confiscation of boxes of branded ceramic floor / wall tiles seized at the premises[693 boxes] - boxes of ceramic glazed wall tiles cleared from the factory without payment of appropriate Central Excise duty and without declaring correct MRP - imposed a fine and penalty in lieu of confiscation - imposition of personal penalty of Rs.15,000/ under Rule 26 of Central Excise Rules, 2002 on Managing Partner - Whether MRP could be revised in regard to ceramic tiles which were manufactured and cleared from the factory of the manufacturer prior to 28/02/2008? - HELD THAT:- As there has been enough litigation as stated by the appellant and appeal of t....... + More
- 2024 (10) TMI 1398
Refund of unutilized CESTAT credit - no appeal lies against the order dated 6 November 2023, by which the Appellant s application for rectification came to be rejected - HELD THAT:- The learned counsel for the Appellant relied on Lav Kush Textile [ 2017 (5) TMI 1021 - RAJASTHAN HIGH COURT] to contend that relief was granted by the Division Bench of the Rajasthan High Court on identical facts. On considering Lav Kush Textile, it is found that the same has relied upon the decision of the Karnataka High Court in Slovak India [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] . Further, this decision notes that the Hon ble Supreme Court had confirmed the ....... + More
- 2024 (10) TMI 1397
Recovery of short paid service tax - time limitation - appeal has been preferred beyond the period of 1325 days - HELD THAT:- It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days. This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excis....... + More
- 2024 (10) TMI 1396
CENVAT Credit - input service or not - denial on the ground that expression Setting up has been deleted from the inclusive clause of the definition w.e.f. 01/04/2011 and since no goods were manufactured or removed prior to 24/11/2015, the impugned services do not qualify to be input service - HELD THAT:- From the definition of Input Service, it is clear that except the services mentioned in the exclusion clause all the services which are used in or in relation to the manufacture of final product and clearance of goods upto the place of removal are admissible input service. As regard the use of service, there is no dispute that those services....... + More
- 2024 (10) TMI 1395
Determination of date of filing of Refund Application - Refund in respect of the duty paid by their Daman unit (appellant) which is liability of their Halol unit - mistake has occurred due to error of ERP system which is meant for all the group units - computation of time period of one year provided under Section 11B for refund of duty should be computed as on date of first time of filing of refund or on the date of second time filing of refund after return of the refund by the department - time limitation - HELD THAT:- As regard the admissibility of the refund there is no dispute that the duty liability of halol unit was paid by the appella....... + More
- 2024 (10) TMI 1341
Appropriate interest for the delay of rebate to the petitioner - Section 11BB of the Central Excise Act, 1944 - HELD THAT:- In the light of the undisputed fact that the respondent did not grant refund in favour of the petitioner within the maximum prescribed period of three months from the date of the petitioner submitting the refund claim in relation to the amount rejected in the first instance by the respondent which was allowed/granted in favour of the petitioner - the respondent would be liable to pay interest on the refund allowed vide order dated 06.02.2023 in revision order No.46/2023 CX. The respondent is directed to grant interest i....... + More
- 2024 (10) TMI 1340
CENVAT credit of the duty paid on the materials and capital goods used for fabrication, erection and commissioning of both the paint shops on turn key basis - immovable property embedded to earth and ceiling are not excisable goods - scooter and motorcycle plants was wrongly taken and irregularly utilized by them - interest at the appropriate rate leviable on the amount availed wrongly and utilized irregularly - penal action for the act of omission and commission under the provision of the Central Excise Act, 1944. HELD THAT:- The proposed questions of law, however, stand finally adjudicated and decided in favour of the assessee by this Cour....... + More
- 2024 (10) TMI 1339
CENVAT Credit - construction, consultancy, repair, and maintenance services - nexus with manufacturing activity - for what purpose and in connection with which plant/factory, the Appellant had availed those credits? - HELD THAT:- There is no denial of the fact that Appellant had replied back to the show-cause notice almost after a year on dated 10.09.2015 when physical hearing was last scheduled to 22.09.2015. On going through the reply to the show-cause notice but no reference is made in the said reply that the new plant is located away from the present factory of the Appellant, though a distinction between plant and factory was attempted t....... + More
- 2024 (10) TMI 1338
Abatement of appeal under Rule 22 of CESTAT (Procedure) Rules, 1982 - Liquidation proceedings - recovery of irregular CENVAT credit availed, with interest and penalty - HELD THAT:- As the Department has already registered its claim with the Liquidator, no further proceedings can survive in this appeal. As the NCLT, Chennai has ordered for Liquidation of the appellant vide its order dated 19.03.2018 and as the Liquidator has confirmed the receipt of claim from the Deputy Commissioner of GST and Central Excise, Trichy and also as no application as per Rule 22 has been made by the Official Liquidator appointed by the NCLT for continuance of the....... + More
- 2024 (10) TMI 1337
Classification of goods - soya nuts and wheat puffs - goods cleared below the threshold limit prescribed - benefit of SSI exemption under Notifications 175/86-CE dated 01.03.1986 and 01/93-CE dated 28.02.1993 - HELD THAT:- It is undisputed that the appellant was clearing goods most of which were supplied to ICDS which were exempted anyway regardless of the SSI exemption. These have to be excluded from the aggregate value of clearances under the notification in view of the Explanation II. Once the value of these clearances is deducted from the total turnover of the appellant, what remains is the value of dutiable goods during different years ....... + More
- 2024 (10) TMI 1336
Reversal of CENVAT Credit with interest and penalty - non-moving/ obsolete /surplus inventories - inputs written off in their books of account in accordance of rule 3 (5B) of CCR - Invocation of extended period of limitation - HELD THAT:- On a plain reading of the said Rule it is clear that in the event the value of any input or capital goods before being put to use on which Cenvat credit has been availed are written off fully or partially or any provision has been made to write off those fully or partially than the manufacturer or service provider are required to reverse/pay Cenvat credit availed on such inputs or capital goods. Thus it is ....... + More
- 2024 (10) TMI 1335
Levy of penalty under Rules 15 (1) of the Cenvat Credit Rules, 2004 on an employee who did not avail or utilize Cenvat Credit - HELD THAT:- The penal provision provided under Rules, 15 of the Cenvat Credit Rules, 2004 clearly mentioned that penalty imposable of the person who takes of utilises Cenvat Credit in respect of input or capital goods or input service. It is found that the appellant has been working only as a employee of the main noticees, he has neither taken Cenvat Credit himself or utilize the same for its own purposes for payment of the duty and therefore, the penal provisions has provided under Rules, 15(1) of the Cenvat Credit....... + More
- 2024 (10) TMI 1334
Denial of Cenvat Credit distributed during April to June 2012 by the Appellant s Head Office (Input Service Distributor) at Kolkata to the Appellant unit at Palej (Bharuch) - denial on the ground that the ISD did not distribute the Credit amongst all units proportionate to the respective turnovers of the units, resulting in distribution of excess Credit to the Palej unit - revenue neutrality - intent to evade or not - extended period of limitation - HELD THAT:- It is found that as regard distribution of credit in respect of common input service , the provisions is made under Rule 7 of Cenvat Credit Rules, 2004 which has undergone the change ....... + More
- 2024 (10) TMI 1333
CENVAT Credit - capital goods - inward transport - reverse charge mechanism - scope of SCN - penalty - HELD THAT:- The Adjudicating Authority has clearly traversed beyond the charges levelled in the show cause notice and confirmed the demand on the grounds which were not indicated in the show cause notice. Therefore, on this ground itself, the demand is not sustainable, even though he has rightly held the said goods as input or consumable and therefore allowed the taking of the credit of the same by the appellant which had initially taken the credit on the same as capital good. Therefore, taking of credit has not been found to be wrong by th....... + More
- 2024 (10) TMI 1332
Inclusion of amount retained by the appellant under the Package Scheme of Incentive 1993 - difference between the amount collected and the net present value (NAV) , computed with the date of schedule payments as benchmark - HELD THAT:- The issue stood covered by the decision of the Tribunal in COMMISSIONER OF CENTRAL EXCISE, RAIGAD, BALKRISHNA INDUSTRIES LTD., ESSEL PROPACK LTD. VERSUS UTTAM GALVA STEELS LTD., BHUSHAN STEEL LTD., JSW ISPAT STEEL LTD., COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [ 2015 (10) TMI 1727 - CESTAT MUMBAI] which, in identical circumstances of dispute of another similarly situated automotive parts manufacturer, RATION....... + More
- 2024 (10) TMI 1256
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Petitioner failed to deposit the required amount under the scheme - HELD THAT:- Admittedly, the petitioner did not deposit the amount of Rs. 89,77,393.50 as per Form SVLDRS-3 issued by the respondent No. 2 after considering the Form SVLDRS-1 filed by the petitioner. The ground on which the petitioner had not deposited the money to avail the benefit under the scheme is of no consequence inasmuch as the facts remains that the petitioner had not abided by the terms and conditions of the scheme which stipulate that the petitioner was supposed to make the payment within 30 days from the iss....... + More
- 2024 (10) TMI 1255
Denial of input service credit - ineligible capital services - maintaining medical centre (Ambulance room) - membership of Tamil Nadu Electricity Consumer Association - what constitutes services used directly or indirectly in relation to manufacture of final products ? - period April 2011 to March 2013 - HELD THAT:- The words 'directly or indirectly in or in relation to manufacture' used in the definition of input service, should be given a very wide meaning, subject only to the restrictions placed by the CCR 2004. Credit of service tax of duty paid towards mandatory services availed by the appellant under various Acts or which are m....... + More
- 2024 (10) TMI 1254
Refund of un-utilised cenvat credit on closure of units - denial of refund in the absence of express statutory mandate or provisions of law - time limitation - HELD THAT:- The principle of law was settled by the Tribunal, which was affirmed by the High Court of Karnataka and the Apex Court in Slovak India Trading Co. Pvt. Ltd. [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] that since there is no manufacture in the light of closure of the company, Rule 5 is not available for the purpose of rejection as has been rightly ruled by the Tribunal and, therefore, the refund has been rightly ordered in the light of the closure of the factory and the assess....... + More
- 2024 (10) TMI 1253
Valuation of Excise Duty - inclusion of excess freight collected by the appellant as compared to the actual freight paid to the transporter in the assessable value of the excisable goods for the purpose of charging excise duty - HELD THAT:- This issue is no longer res-integra particularly in the appellant s own case this tribunal has held that in such case the freight is not includible in the assessable value. This Tribunal in KASHYAP SWEETNERS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VAPI AND JITENDRA PANDEY VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VAPI [ 2023 (7) TMI 1111 - CESTAT AHMEDABAD] where it was held that ' excess fr....... + More
Case Laws - Vat / CST
- 2024 (10) TMI 1458
Maintainability of the petitions in view of availability of the alternative remedy of filing statutory appeal under Section 73 of the Gujarat Value Added Tax Act, 2003 - whether the liability of payment of Value Added Tax would include service tax component collected by the petitioner from customers or not? - HELD THAT:- The petitioner is required to calculate the taxable turnover of its sales under the provisions of Section 14 of the Act by excluding the amount of turnover of sales not subjected to tax under the Act and turnover of goods declared exempt and in case of turnover of sales in case of the works contract, charges towards labours,....... + More
- 2024 (10) TMI 1331
Quashing of disciplinary proceedings midway, i.e., at the stage when the enquiry had been completed - jurisdiction of the disciplinary authority - HELD THAT:- There was no adversarial order, resulting in no cause of action to canvass or maintain the Writ Petition. The mere pendency of the inquiry or the Writ Petitioner s apprehension of any adverse orders cannot be a ground to maintain the Writ Petition. It is apparent that no rights of the Writ Petitioner have been abridged, nor has the inquiry resulted in altering the service conditions. In that context, the mere issuance of the show cause notice would not confer jurisdiction on this Court....... + More
- 2024 (10) TMI 1248
Benefit of the concessional rate of tax under Section 8 (a) (ii) of the Kerala Value Added Tax Act (KVAT Act), 2003 - import of any goods into the State or Country 'for incorporation in the works contract' - goods imported were not incorporated in the works contract for the year 2015-16 and the goods were returned to the supplier. HELD THAT:- While it may be a fact that in the absence of any material to suggest the actual return of the imported goods, the revenue may have been justified in presuming that the goods imported were in fact for incorporation in the works contract, and in such a situation would have been justified in insis....... + More
- 2024 (10) TMI 1247
Levy of Octroi by the various Municipal Councils - SIM Cards issued by the Bharti Mobile Limited and distributed in the State of Punjab, being sold in their municipal limits - whether SIM Card can be treated as goods ? - HELD THAT:- The said question is no more res intergra, keeping in view the judgments passed by the Hon ble Supreme Court in BSNL Vs. Union of India [ 2006 (3) TMI 1 - SUPREME COURT ] and Idea Mobile Communication Ltd. Vs. Commr. of C. Ex. Cus., Cochin [ 2011 (8) TMI 3 - SUPREME COURT ] wherein the Hon ble Apex Court while examining the imposition of sales tax on the usage of SIM, held that sales tax can be imposed. The quest....... + More
- 2024 (10) TMI 1176
Seeking to challenge review orders 15 of the Maharashtra Settlement of Arrears of Taxes, Interest, Penalties or Late Fees Act, 2022 (Settlement Act) - refund amount for financial year 2016-2017 is sought to be adjusted against the outstanding demand for the financial years 2013-2014, 2015-2016 and 2017-2018 - seeking to review settlement orders passed under Section 13 (1) of the Settlement Act. Whether the Respondents were justified in exercising the review powers under Section 15 of the Settlement Act to review the settlement orders passed under Section 13 (1) of the said Settlement Act and recalculating the amount of arrears which were ini....... + More
- 2024 (10) TMI 1175
Violation of principles of natural justice - declination to grant waiver of pre-deposit to the appellant without assigning any reasons for such decision - declination to grant waiver of pre-deposit to the appellant even though the entire demand is based upon Section 61 of the VAT Act which is wholly irrelevant to the issue of determination of sale price - declination to grant waiver of pre-deposit to the appellant even though adjustment of tax liability is clearly permissible under Section 8 of the VAT Act - declination to grant waiver of pre-deposit to the appellant even though the appellant has a strong prima facie case squarely supported ....... + More
- 2024 (10) TMI 1125
Input tax credit - non-existing or bogus entities - HELD THAT:- The appeal is disposed off in light of ratio in Ecom Gill Coffee Trading Private Limited [ 2023 (3) TMI 533 - SUPREME COURT] where it was held that ' Both, the second Appellate Authority as well as the High Court have materially erred in allowing the ITC despite the concerned purchasing dealers failed to prove the genuineness of the transactions and failed to discharge the burden of proof as per section 70 of the KVAT Act, 2003.' Appeal allowed.
- 2024 (10) TMI 1124
Demand of central sales tax on movement of goods from the manufacturing units of the appellants situated in the State of Rajasthan to their depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers? - HELD THAT:- Mere transfer of goods from a head office to a branch office or inter-branch transfer of goods which broadly come under the phrase branch transfers cannot be regarded as sale in the course of interstate trade for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of stock transfers. A contract of ....... + More
- 2024 (10) TMI 1050
Evasion of tax - person responsible for such evasion - whether the petitioner can be seen as person who sought to evade the tax payable in respect of the consignment of jewellery that was brought by him from Mumbai to Cochin? - HELD THAT:- Taking in isolation the fact that the petitioner had not covered the consignment that was brought by him from Mumbai to Cochin by a valid Form 8FA declaration as mandated under the Kerala Value Added Tax Rules, the Commercial Tax Authorities in the State were perhaps justified in assuming that but for the detection, the petitioner might have well evaded his tax liability by clandestinely selling the consig....... + More
- 2024 (10) TMI 889
Classification of goods - electric motor - falling in capital goods under entry 27 of Schedule-IV or not - HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petitions are dismissed.
- 2024 (10) TMI 802
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four mont....... + More
- 2024 (10) TMI 800
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four mont....... + More
- 2024 (10) TMI 799
Challenge to assessment order - non-application of mind - violation of principles of natural justice - HELD THAT:- Though the impugned assessment order dated 24 May 2023 may be vitiated by non-application of mind, failure of natural justice, and even breach of Section 23 (4) of the MVAT Act, which statutorily incorporates the requirement of personal hearing, we cannot infer any manipulation, backdating, or subterfuge. Besides, there was no unreasonable delay in communicating the impugned assessment order dated 24 May 2023. The issue of this order being made beyond the statutorily prescribed limitation period also does not arise in this matte....... + More
- 2024 (10) TMI 798
Seeking refund alongwith interest in terms of Section 38 and 42 of the Delhi Value Added Tax Act, 2004 - non-furnishing of declaration forms - compliance with timelines or not - HELD THAT:- Admittedly, the refund was not released within the stipulated period of two months from the date of submitting the Form DVAT 2 in terms of Section 38 (3) (a) (ii) of the DVAT Act. The State having received the money without rights and having retained and used it, is bound to make the party good, just as an individual would be under the circumstances. The obligation to refund the money received and retained without right implies and carries with it the rig....... + More
- 2024 (10) TMI 797
Interest alongwith interest on refunds of excess amount deposited - non-furnishing of declaration forms - said amount not reflected in the returns filed for the relevant period, nor adjusted against the demands - no revised return filed within one year to claim the refund as envisaged under Section 28 of the DVAT Act - refund has been claimed after a gap of more than five years - HELD THAT:- It is clear from the language of Section 28 of the DVAT Act that if there is any discrepancy in the return furnished for the tax period, the assessee is liable to furnish a revised return. It is not the case of the respondent that there was any discrepan....... + More
- 2024 (10) TMI 796
Levy of Penalty in terms of Section 16(2)(d) of Tamil Nadu General Sales Tax Act, 1959 - sales/purchase suppression - addition on account of purchase suppression towards Aluminium winding wires, freight and Gross Profit - HELD THAT:- The trading account, if at all such document existed, ought to have been produced before the authorities at the time of inspection or at least before the assessing officer. No reason has been assigned for such nonproduction at the relevant point in time and neither has the Appellate Assistant Commissioner assigned any reason for permitting the admission of the document, belatedly. There is thus no evidence whats....... + More
- 2024 (10) TMI 783
Challenge to impugned order and the impugned demand notice - failure of natural justice - non-application of mind - legal mala fides - HELD THAT:- In the gross facts of the present case, there is no question of relegating the Petitioners to the alternate remedy of appeal under the provisions of the MVAT Act. In a case where the violation of the principles of natural justice is apparent, the objection based upon the non-exhaustion of alternate remedies is rarely entertained. In this case, the Respondents did not even raise or, in any event, press the objection based upon the non-exhaustion of the alternate remedies. Though the impugned assess....... + More
- 2024 (10) TMI 615
Challenge to demand notice for recovery of outstanding dues - whether the claims if any under the Gujarat Value Added Tax Act, 2003 which are not considered in the Resolution Plan would stand extinguished? - HELD THAT:- From the record, it is noticed that in the proceedings filed before NCLT, during CIRP process, the Assistant Commissioner of State Tax, as one of the operational creditors, lodged a claim of Rs.38,86,63,983/- for its dues under the Gujarat Value Added Tax Act, 2003 for the assessment years 2006-07, 2009-10, 2010-11 and 2011-12. Thus, it cannot be denied that the respondent authorities were not aware about the pending liquidat....... + More
- 2024 (10) TMI 559
Levy of commercial tax under the Commercial Tax Act as well as the Entry Tax Act - challenge to assessment orders - works contract or not - Build, Operate and Transfer (BOT) contract - scope of registered dealer as defined under Section 2 (gg) of the M.P. Entry Tax Act, 1976 - HELD THAT:- It is a settled law that no person has a right to collect a toll or any tax from private persons for using the road. The State Government gave a right to collect the toll to the petitioner from the vehicle passing through the road for a definite period to recover the only cost of construction i.e. the sale amount or the contract value, therefore, the Dy. Ad....... + More
- 2024 (10) TMI 558
Imposition of Entry Tax on the crude Soyabean Oil brought by the petitioners within the State of MP for manufacturing/refining Soyabean Refined Oil - revision filed u/s 62 of the MPCT Act read with the relevant provision of the Entry Tax Act - levy of tax also challenged on the ground that in case, the refining of Soya crude oil is treated as a process of manufacture then even in such case, soya crude oil being Raw material would be exempted under N/N. A-3-10-2000-ST-V(82) dated 06-09-2001. HELD THAT:- In the case of Commercial Trade Tax V/s M/s Kumar Paints and Mills Store [ 2023 (3) TMI 943 - SUPREME COURT] the Apex Court considered the qu....... + More
Case Laws - Indian Laws
- 2024 (10) TMI 1457
Attachment of the properties on default of return of deposits - Prayer for quashing and setting aside the auction process in respect of sale of the subject property - challenge to auction in which the Petitioner itself is declared as successful auction purchaser - alleged suppression of material facts in contravention of section 55 (1) (a) of the Transfer Of Property Act, 1882 - HELD THAT:- The attachment of the properties on default of return of deposits u/s. 4 of the MPID Act starts with a non-obstante clause and it provides that when the Government is satisfied that any Financial Establishment has failed to return the deposit after maturi....... + More
- 2024 (10) TMI 1456
Levy of deficit stamp duty and penalty - whether in a case where a sale is conducted by a Court or under the aegis of Court (like in the present case), the stamp authorities can embark upon a journey to determine the true market value of the property [sold in an auction conducted by the Court or under the aegis of the Court] and levy stamp duty thereon? - HELD THAT:- The issue raised in the present Petition is squarely covered by a decision of a Division Bench of this Court in the case of SPECTRUM CONSTRUCTIONS AND DEVELOPERS LLP VERSUS STATE OF MAHARASHTRA THROUGH JOINT DISTRICT REGISTRAR, COLLECTOR OF STAMPS, RAIGAD [ 2022 (1) TMI 1469 - B....... + More
- 2024 (10) TMI 1455
Dishonour of Cheque - Insufficient funds - validity of the complaint u/s 138 of the NI Act, 1881, filed through a Power of Attorney - proceedings initiated on the basis of a compromise deed - HELD THAT:- It is relevant to note that this Court can quash complaints under the NI Act at the pre-trial stage in the exercise of its inherent jurisdiction under Section 482 of the CrPC if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques or that no offence is made out from the admitted facts. The Hon ble Apex Court in the case of Rathish Babu Unnikrishnan v....... + More
- 2024 (10) TMI 1394
Medical negligence of the doctor - deterioration of patient's condition due to neglugence of Doctor or otherwise? - HELD THAT:- A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him. In Ja....... + More
- 2024 (10) TMI 1393
Extension of time for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The period during which the interim order passed by this Court was in operation, will be excluded for the purpose of computation of the period for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996. Applications disposed off.
- 2024 (10) TMI 1330
Conviction for the offences punishable under Section 120B read with Sections 420/419 of the Indian Penal Code (IPC) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - substantive sentence of 7 years - embezzlement - HELD THAT:- The power of suspension of sentence under Section 389 of the CrPC (Corresponding to Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is vested in the Appellate Court dealing with an appeal against the order of conviction. On a plain reading of subsection (1), the Appellate Court has the power to suspend the execution of a sentence or order appealed against. If the appellant/accused....... + More
- 2024 (10) TMI 1329
Suit for declaration of title over the suit property - recovery of possession - whether the registered gift deed dated 05.03.1983 was duly acted upon and accepted and is a valid document which continue to exist despite its revocation on 17.08.1987 as the donor had not reserved the right to revoke the same? - HELD THAT:- Admittedly, the present suit for declaration and recovery of possession of the suit property was filed by the plaintiffrespondent on 25.09.1991. The court of first instance held that as the same was not filed within three years from the date of revocation of the gift deed, i.e., 17.08.1987 (Exhibit B-2), the suit is barred by....... + More
- 2024 (10) TMI 1328
Maintainability of the appeals - right to contest an appeal against its order determining tariff for aeronautical services before TDSAT - Whether AERA has a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, and then consequently prefer an appeal against the order of TDSAT before this Court under Section 31 of the AERA Act? - Even if AERA does not have a right to contest an appeal against its order determining tariff for aeronautical services before TDSAT, does it have a right to prefer an appeal against the order of TDSAT before this Court in terms of Section 31 of the AERA Act? HELD THAT....... + More
- 2024 (10) TMI 1123
Overriding effect of Public Premises Act, 1971 over the Arbitration and Conciliation Act, 1996 - error or not in appointing the arbitrator while exercising the jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996. Whether the Public Premises Act, 1971 overrides the Arbitration and Conciliation Act, 1996? - HELD THAT:- The dispute that is raised in the Section 11 application relate to promises and reciprocal promises arising out of the agreement dated 26.09.2012. The right of renewal as well as the legality and propriety of the enhanced demand arose during the subsistence of the agreement. It will be on the interpretati....... + More
- 2024 (10) TMI 1122
Reinstatement of employees and paymnet of compensation in lieu of back wages - employee falls under the definition of workman as given in section 2(s) of the Industrial Disputes Act, 1947 or not - HELD THAT:- It is pertinent to point out that the Industrial Disputes Act, 1947, was enacted by the legislature to settle the industrial disputes. It was brought with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. As per Section 2(s) of the I.D. Act, a person to be qualified as a workman has to do an....... + More
- 2024 (10) TMI 1121
Dishonour of Cheque - presumption regarding the consideration - failure to rebut the presumption by providing satisfactory evidence - HELD THAT:- It was laid down by the Hon ble Supreme Court in MALKEET SINGH GILL VERSUS THE STATE OF CHHATTISGARH [ 2022 (7) TMI 1455 - SUPREME COURT] that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. The accused has not disputed the taking of the loan, the issuance of the cheque and his signatures on the cheque. It was laid down by this Court in NARESH VERMA VERSUS NARENDER CHAUHAN [ 2019 (10) TMI 1578 - HIMACHAL PRADESH HIG....... + More
- 2024 (10) TMI 974
Setting aside of auction sale - grant of adequate compensation to the appellant - submission of the learned counsel appearing for the appellant is that solatium at 5 per cent of the amount deposited by the appellant granted to the appellant is inadequate - HELD THAT:- The High Court set aside the auction sale not based on the provisions of the said Rules or on the ground that the auction was illegal. The High Court set aside the auction on equitable considerations, as the entire amount due and payable to the 4th respondent bank, including interest, was deposited by the 1st and 2nd respondents with the High Court within three months from fili....... + More
- 2024 (10) TMI 973
Levy of of tax/fee/royalty on advertisement(s) - demand made without any legislative sanction and is, thus, violative of Article 265 of the Constitution of India, 1950 - whether the demand is by way of a tax/levy or simply in the nature of royalty for permission for advertising through hoardings within the limits of the Corporation? HELD THAT:- In the present case, it cannot be lost sight of, as also elucidated in INDSIL HYDRO POWER AND MANGANESE LIMITED VERSUS STATE OF KERALA AND ORS. [ 2021 (9) TMI 1561 - SUPREME COURT] , especially in Paragraph 56 thereof, after considering a host of precedents, that the imposition of royalty cannot be eq....... + More
- 2024 (10) TMI 972
Dishonour of cheque - security cheque or not - Presumption of innocence - challenge to acquittal of accused - HELD THAT:- The learned First Appellate Court acquitted the accused solely on the ground that the repeated presentation of the cheque and issuance of notice are not permissible. This finding of the learned First Appellate Court cannot be accepted. It was laid down by the Hon ble Supreme Court in MSR Leathers [ 2012 (10) TMI 232 - SUPREME COURT ] that there is nothing in the N.I.Act to prevent the repeated presentation of the cheque or issuance of successive notices. It was observed ' the prosecution based upon second or successiv....... + More
- 2024 (10) TMI 971
Seeking to set aside impugned order - petition does make out a genuine case of hardship - HELD THAT:- It is found strange, that a letter by Petitioner's Chartered Accountant was not accepted by the office. It is not clear why it was not accepted. The impugned order is set aside - matter remanded for denovo consideration to Respondent No.2 - petition disposed off.
- 2024 (10) TMI 888
Dishonour of Cheque - challenge to conviction and sentence under Section 138 of the Negotiable Instruments Act - applicability of presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- In the instant case, there is no specific denial, if any, on the part of the accused with regard to his having issued Cheques as well as his signatures thereupon, rather, in his statement recorded under Section 313 Cr.P.C., he admitted complainant to be his acquaintance as well as factum of his having purchased the material, but for less amount. He categorically deposed that he had issued blank Cheque as a security, which subseq....... + More
- 2024 (10) TMI 887
Dishonour of cheque - acquittal of the accused - cheque was given as collateral security or not - HELD THAT:- This Court has perused the impugned judgment and order of acquittal passed by the Trial Court and the decisions cited at the Bar. Considering the facts of the case, it reveals that the cheque in question was issued in favour of father of the complainant towards the debt and during the course of clearance of the cheque, the drawee was passed away and, therefore, the complainant posed himself as payee or the holder in due course issued notice as provided under Section 138 of the N. I. Act and the offence under Section 138 of the N.I. A....... + More
- 2024 (10) TMI 886
Application for grant of leave to file appeal - Acquittal of accused under Section 138 of the Negotiable Instruments Act - HELD THAT:- Evidently, a leave to appeal is required by the complainant of such cases, who is not a victim as defined above. The law is wellsettled that any person can set the criminal proceedings in motion, if he has knowledge of commission of any cognizable offences, such step may be taken by filing an F.I.R. with the police or a complaint petition before a Magistrate. If such complainant, is not a victim as defined above then, he would be required to prefer leave application before the High Court for preferring appeal....... + More
- 2024 (10) TMI 885
Dishonour of Cheque - Issuance of summons in the complaint - role of petitioner in the firm's business - respondent seeks dismissal of the petition and submits that the appropriate stage for discharge is before the trial Court and not the inherent jurisdiction of this Court - HELD THAT:- It is clear that the petitioner was neither the signatory nor the proprietor of the firm which issued two cheques in question. Before anyone can be summoned to face a criminal trial, the Magistrate must search for primafacie legally admissible evidence, which attributes some role that makes out a penal offense - In the present case, the complainant is si....... + More
- 2024 (10) TMI 795
Conspiracy and misconduct in sanctioning credit facilities - HELD THAT:- Perhaps the only material that creates suspicion is the speed with which the proposal of the Company was sanctioned. As far as the respondent is concerned, considering his position and the role ascribed to him in the grant of sanction to the loan proposal of the Company, mere suspicion against him is not enough to frame a charge against him. The proposal had passed through the Loan Advisory Committee which recommended the same. The proposal was placed before the respondent on 10th August 2010. As the credit proposal was beyond the sanctioning authority of the respondent....... + More
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