Case Laws - Income Tax

• 2024 (12) TMI 72
  Foreign Tax Credit (FTC) denied - Form No. 67 was filed belatedly - exparte assessment order challanged - HELD THAT:- Since the appeal against exparte assessment order is still pending before NAFC. Without expressing anything on merits of the case, the present appellate order passed by CIT[A] is hereby set-aside with a direction to decide the same along with the other appeal within a period of four months.

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• 2024 (12) TMI 71
  Disallowance of carried forward loss and unabsorbed depreciation u/s 72AB due to merger - HELD THAT:- We note that after taking into account the factual aspect of assessee s case under consideration, we note that the assessee has fulfilled the conditions mentioned u/s 72AB of the Act and hence, the assessee is eligible to claim set-off of accumulated loss and un-absorbed depreciation. AO has erred in interpreting the provisions to the effect that the claim could be made only after completion of the mandatory period referred to in sub section (2) of Section 72AB of the Act. The AO is therefore, directed to allow the claim of set off of carry ....... + More

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• 2024 (12) TMI 70
  Denial of Exemption u/s 11 - non-filing of audit report in Form 10B along with return of income - form No. 10B was filed by after the filling of return of income - HELD THAT:- Admittedly, in the instant case the audit report in Form 10B was filed by the assessee through e-portal on 26.12.2020. Hence the audit report in Form 10B was filed prior to one month of the due date for furnishing the return of income under sub-section (1) of section 139 of the IT Act i.e. 15th February, 2021 in the instant case. Although the assessee failed to reflect the fact of filing audit report in its return of income, we are of the considered opinion that this b....... + More

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• 2024 (12) TMI 69
  Reopening of assessment - undeclared sale consideration/capital gain - AO specifically mentions that the income is likely to be escaped is more than Rs. 50 lakhs and is represented in the form of asset - HELD THAT:- The assessee had merely sold immovable property amounting to Rs. 43 lakhs and, in fact, had invested this amount in purchase of another property of Rs. 90 lakhs leading to an addition of Rs. 47 lakhs. In this context, we have also examined the order under clause (d) of section 148 dated 29.03.2022 and we find that on the basis of sale of immovable properties worth Rs. 1,33,00,000/-, the assessee was show caused for the purpose of....... + More

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• 2024 (12) TMI 68
  Levy of fee u/s 234E - Interest u/s 220(2) on default amount also been imposed - assessee submits that the provisions of sec 200A(1)(c)(d)(f) have come into force by Finance Act, 2015 only with effect from 01.06.2015 and there was no authority or competence or jurisdiction in respect of the assessment of the earlier period - HELD THAT:- As relying on SHRI BHASKAR ROY [ 2021 (12) TMI 784 - ITAT KOLKATA] we are inclined to hold that the demand raised by the Income-tax Authorities for levying late fee u/s. 234E of the Act for the period prior to 1-6-2015 cannot be sustained and we order accordingly. Decided in favour of assessee.

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• 2024 (12) TMI 67
  Addition u/s 50C - difference between sale consideration and stamp duty value - Difference was marginally very low i.e. only 2.7% of the sale consideration - HELD THAT:- Addition was unwarranted. Since this argument aligns with the judicial principles emphasising that minor deviation does not necessarily reflect an attempt to evade taxes, particularly when the variation is below a threshold limit of 5%. We in this respect rely on the decision of Shaista Irphan Mogul 2021 (8) TMI 270 - ITAT MUMBAI] . Accordingly, the addition made u/s 50C is deleted and Ground of the assessee is allowed. Allowability of deduction u/s 54F - Assessee claimed th....... + More

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• 2024 (12) TMI 66
  Validity of assessment completed u/s 153A - No valid and lawful approval u/s.153D - assessee agued statutory approval given to the Assessing Officer for the assessment orders was not based on application of mind - approval was given by Addl. CIT in a mechanical manner within a short period of time during which it was humanly impossible for the Addl. CIT to go through exhaustive assessment records, search seizure materials and to thereafter give approval after due application of mind - HELD THAT:- We are of the view that the issue in dispute is squarely covered by the order Subodh Agarwal [ 2023 (2) TMI 1072 - ALLAHABAD HIGH COURT] order of S....... + More

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• 2024 (12) TMI 44
  Assessment u/s 153C - AO s assumption of jurisdiction u/s 153C - HELD THAT:- A predecessor Bench of this Court in CIT v. Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] held that if no incriminating material is found during the course of the search in respect of an issue, then no addition in respect of such an issue can be made in the assessment under Sections 153A and 153C of the Act.

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• 2024 (12) TMI 43
  Revision u/s 263 - provision made for depreciation on investment and the assessee had added back only relating to investments in India and excluded investments outside India - HELD THAT:- The tribunal by placing reliance on the order passed by it in the case of assessee for Assessment Year 1996-97 and 1997-98 inter alia held that the revenue as well as assessee are bound by the decision rendered by the tribunal and therefore, in the light of decision rendered by tribunal, the Commissioner of Income Tax committed an error in holding that the order passed by the Assessing Officer was erroneous and prejudicial to the interest of the revenue. Ac....... + More

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• 2024 (12) TMI 42
  Validity of reopening of assessment - deduction u/s 54B was wrongly claimed for the agricultural land sold by the brothers of the petitioner - objection filed by petitioner were rejected - HELD THAT:- It is a settled law that inspite of amendment made in the year 1998 u/s 147 of the Act, the reassessment proceedings cannot be initiated on change of opinion. For concluding that AO had applied mind to an issue not only assessment order is relevant but it can also be determined from record. It is for AO to determine how to frame an order. The issue accepted may not be even discussed in the order and assessee is not responsible for this. Non rec....... + More

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• 2024 (12) TMI 41
  Unexplained money u/s. 69A - cash deposited in bank account of the appellant - HELD THAT:- As decided in SMT. PK NOORJAHAN [ 1997 (1) TMI 6 - SUPREME COURT] deliberating on the term may used in Section 69 said Income-tax Officer is not obliged to treat the source of investment as income in every case where the explanation offered by the assessee is found to be not satisfactory. It was further observed that the question as to whether the source of the investment should be treated as income or not u/s. 69 of the Act has to be considered in the light of the facts of each case. Discretion has been conferred on the Income-tax Officer u/s. 69 of t....... + More

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• 2024 (12) TMI 40
  Addition u/s 68 - unexplained cash credits in bank account - HELD THAT:-Assessee is engaged in the business of textile and grey and is filing return of income for many years. The cash sales in the business of assessee, is a usual practice. Thus, considering the overall facts and circumstances of the case, entire cash deposit during demonetization period cannot be treated as unexplained credit, for a businessman having turnover of more than Rs. 1.00 crore. Considering the fact that the assessee is not able to substantiate the source of entire cash deposit, similarly entire cash deposit cannot be treated as income. Therefore, a reasonable addi....... + More

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• 2024 (12) TMI 39
  Addition in respect to loan obtained u/s 68 or under section 69A - HELD THAT:- Assessee, vide submission had submitted before the Assessing Officer, a detailed reply along with documents wherein confirmation in respect of loan taken from M/s. Abhilasha Shoppers Pvt. Ltd. for the period from 01/04/2012 to 31/03/2015 were submitted. It is clear that the loan creditor is assessed to income tax and its address and PAN details are matter of record. The financial statements of M/s.Abhilasha Shoppers Pvt. Ltd., were also submitted. The amount received and payable by the assessee as on 31/03/2013, is verifiable from the financial statements of the l....... + More

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• 2024 (12) TMI 38
  Disallowance u/s 14A r.w.r. 8D - HELD THAT:- Where assessee s own funds and other non-interest bearing funds were more than the investment in tax free securities no disallowance u/s 14A can be made. See Cyquator Media Services Pvt. Ltd. vs DCIT [ 2023 (7) TMI 855 - ITAT MUMBAI] . Appeal of the assessee is allowed.

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• 2024 (12) TMI 37
  Validity of reopening u/s. 147 - issuance of notice u/s. 148 beyond the period of four years - addition towards share application money u/s. 68 - HELD THAT:- From the perusal of the aforesaid list of companies and the companies from whom assessee had received share application money, it can be seen that nowhere these companies have been mentioned by Shri Pravin Jain that any of the 6 entities were managed and controlled by him. Thus, the very premise of the ld. AO while recording the reasons is based on wrong assumption of facts. It is a very well settled law that ld. AO has acquired jurisdiction based on valid reasons and material and infor....... + More

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• 2024 (12) TMI 36
  Reopening of assessment u/s 147 - Notice beyond period of four years - assessee was beneficiary of accommodation entries from the account maintained in HDFC Bank - HELD THAT:- The reopening was made u/s 147 of the Act by issuing notice u/s 148 after the AO received information from DDIT(Inv), Unit-4(1), Kolkata. Therefore, the reopening can only be made subject to the satisfaction of the conditions as provided in first proviso to section 147 which state that where the assessment has been framed u/s 143(3) reopening after a period of four years can only be made if the escapement of income is attributed to the failure on the part of assessee t....... + More

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• 2024 (12) TMI 35
  TDS u/s 195 - Deduction of TDS from the payments made to foreign associated enterprise/group companies - HELD THAT:- As relying on assessee s own case in [ 2024 (8) TMI 928 - ITAT DELHI] we hold that since the remittance made by HCLT to the foreign subsidiary/ AEs are held to be not taxable in India in the hands of the recipient company in India, there would be no obligation for the payer i.e. assessee company, to deduct tax at source u/s 195 of the Act. This proposition is already settled by the Hon'ble Supreme Court in the case of GE India Technology India Ltd. [ 2010 (9) TMI 7 - SUPREME COURT] No infirmity in the order of the ld CIT(A....... + More

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• 2024 (12) TMI 34
  Disallowance u/s 37 - Allowability of business expenses - CIT(A) deleted addition - HELD THAT:- Section 37 of the Act provides that any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out or expanded wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head Profits and gains of business or profession . The assessee wholly and exclusively claims that the entire expenses have been incurred for the business purposes. The assessee company has paid tax at MAT rate and there is no tax evasion. The Ld CIT(A) has examin....... + More

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• 2024 (12) TMI 33
  Estimation of gross agricultural income - calculating the net agriculture income @ 30% of gross income and thus making the addition of the balance amount as unexplained income - HELD THAT:- AO computed the income from paddy at Rs. 9,600/- per acre whereas income from wheat at Rs. 3,600/- per acre. After applying the rate of 30% the net income was estimated at 3,960/- in FY 1999-2000. In our opinion, the said calculation of AO was not based on any scientific formula or facts on record. Therefore, in our opinion, it would be reasonable and fair estimation of net agricultural income if both net profit rate of 45% is applied and 55% is treated a....... + More

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• 2024 (12) TMI 32
  Penalty proceedings u/s. 270A - Denial of Exemption u/s. 54F - assessee had shown income from house property from two properties, thus, he inferred that once the assessee owns two residential properties and the income of both the properties have been offered by the assessee in the return - HELD THAT:- In this case it is neither a case of misrepresentation or suppression of fact because assessee has duly placed all the facts before the AO as well as in the return of income. Other clauses from b to f are also not applicable to show that it is a case of misreporting of income. If ld. AO is levying the penalty by invoking Section 270A (9), then ....... + More

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• 2024 (12) TMI 31
  Revision u/s 263 - as per CIT assessee was one of the beneficiary in the scam of NSEL through its brokers in which case the ld. AO is said to have not made proper inquiry with respect to the impugned commodity transactions - assessee has entered into bogus commodity trading on NSEL by Client Code Modification (CCM) for which the AO has reopened the assessment but has not verified the information available in the Insight Portal/Investigation wing, thereby the information received has been unverified and unexplained which holds the assessment order to be erroneous in so far as it is prejudicial to the interest of the revenue HELD THAT:- AO has....... + More

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• 2024 (12) TMI 30
  Levy of interest u/s 201(1A) - late deduction of tax at source on salaries paid to floating staff members - bonafied reasons in deducting lower tax in the earlier months of financial year - as per AO the assessee has not followed the approach envisaged in sub-section (1) of section 192 of the Income Tax Act which mandates an employer to estimate salary income of the employee for the entire year and deduct monthly TDS on prorate basis HELD THAT:- If there are bonafide reasons in deducting a lower tax in earlier months of financial year and the same is made get immediately after noticing such shortfall, then in the eventuality section 192 sub-....... + More

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• 2024 (12) TMI 29
  Transfer pricing adjustment - UDS and CM are two distinct segments and cannot be combined for any TP adjustments and further that its overseas AEs being least complex are to be taken as its tested parties - TPO treated the UDS and CM as one composite segments and also proceeded to reject overseas AEs of assessee as tested parties and replace them with domestic entities to benchmark assessee international transactions. HELD THAT:- Action of revenue in combining the UDS and CM sector as one integral activities for determination of ALP we find sufficient force in the arguments of lower authorities. Absence of separate manufacturing facilities, ....... + More

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• 2024 (12) TMI 28
  Assessment order and the demand notice has been issued without any DIN mentioned - non- issue of separate DIN in separate communication - HELD THAT:-We find that the assessment order and the demand notice has been issued without any DIN mentioned in the order and similarly, no DIN has been mentioned in the demand notice issued u/s 156 either, which is not as per provisions of the CBDT circular no 19 dated 14/08/2019, and there is nothing on record to show that there were any exceptional circumstances which would sustain communication of final assessment order manually without DIN and the failure to allocate DIN is an error which could not be....... + More

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• 2024 (12) TMI 27
  Validity of order of CIT(A)(NFAC) s order u/s 250 emanating from the Assessment Order u/s 144 - Assessee's request for personal hearing before the CIT(A) rejected - HELD THAT:- We deem it fit and proper to remit the matter to the first appellate authority after giving an opportunity for a personal hearing, in terms of rule 12 of the Faceless Appeals Rules 2021, for adjudication de novo in accordance with the law and by way of a speaking order. Thus faceless Appeal Scheme 2021 has made it mandatory to provide Virtual Hearing if asked by the Assessee. In this case the assessee had asked for personal hearing which has not been provided by t....... + More

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Case Laws - GST

• 2024 (12) TMI 64
  Cancellation of registration of petitioner - cancellation order does not refer any reason for cancelling the registration of the petitioner - violation of principles of natural justice - HELD THAT:- The record shows that cancellation order has neither refer any violation of conditions mentioned under Section 29 (2) (a) to (e) of the GST Act nor reason has been mentioned for cancellation of registration of the petitioner. Further in the impugned order neither any reference whatsoever nor any finding was recorded to the effect of the material used against the petitioner nor any finding was recorded that the alleged material used against the pe....... + More

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• 2024 (12) TMI 63
  Challenge to notifications dated 12 January 2017 - HELD THAT:- This Petition is disposed off by directing the concerned adjudicating authorities to dispose of notices issued to the Petitioner s members following the law and on their own merits after considering their contentions based on this Court s order in TATA MOTORS LIMITED VERSUS UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES CUSTOMS. [ 2024 (10) TMI 1350 - BOMBAY HIGH COURT] and Hon ble Supreme Court s order in UNION OF INDIA ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [ 2022 (5) TMI 968 - SUPREME COURT] . The Petition is disposed of.

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• 2024 (12) TMI 62
  Detention and seizure of goods - State E-way Bill was not present at the time of interception - HELD THAT:- It is not a case of the respondent authority that at the time of interception of the goods in question, the Central E-way bill under the GST Act was not available. Only E-way Bill 01 under UP GST Act was not available with the goods in question however before passing of the penalty order, the same was produced. The issue in hand is not res integra - The issue in hand is squarely covers with the judgements of Division Bench of this Court in the cases of M/S GODREJ AND BOYCE MANUFACTURING CO. LTD., L.G. ELECTRONICS INDIA PVT. LTD., BHART....... + More

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• 2024 (12) TMI 61
  Invocation of jurisdiction of the Department u/s 74(1) of the CGST Act, 2017 should not be invoked against the petitioner in respect of the amounts raised in the show cause notices - HELD THAT:- Having heard the learned counsel for the parties and upon perusal of the materials before the Court, at this stage let notice be issued, returnable in 2 weeks - Respondents may complete their instructions and file their counter affidavit in the meantime, if so advised - List on 09/12/2024.

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• 2024 (12) TMI 60
  Application for modification of the order - interest on the delay in payment of the GST amount from the due date of payment till actual realization as per the schedule applicable for delayed payment of GST as provided in the GST Act, 2017 - HELD THAT:- Once the petition has been allowed or dismissed, the order cannot be modified by filing an interlocutory application. This amounts to review of the order passed by this Court. After considering all the facts and circumstances, the Court has granted the relief and if the petitioner is not satisfied with the relief, that cannot be a ground for modification of the order. Application is accordingly dismissed.

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• 2024 (12) TMI 59
  Time limitation - dismissal of appeal on the ground that the delay in filing the appeal is not liable to be condoned under Section 107 (4) of the KGST Act - HELD THAT:- Having regard to the contentions put forth by both the learned counsels, without going into the question as to the correctness or otherwise of the order dated 08.08.2024 (Annexure-A) passed by the Appellate Authority refusing to condone the delay having regard to the order passed in the case of M/s. Sadhana Enviro Engineering Services2, under the peculiar facts and circumstances of the present case, relief sought for by the petitioner is liable to be granted in terms of the o....... + More

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• 2024 (12) TMI 58
  Challenge to assessment order - discrepancies between GSTR-01 and GSTR-3B and between the GSTR-2A and GSTR-3B - neither the show cause notices nor the impugned order of assessment have been served by tendering to the petitioner or by registered post, instead it was uploaded in the common portal - principles of natural justice - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall....... + More

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• 2024 (12) TMI 57
  Challenge to Order of Assessment and order passed in the Rectification Application - error apparent on the face of record or not - HELD THAT:- A perusal of the order does not also indicate that there had been no error apparent on the record to reject the rectification. He had only extracted the tables indicating the figures which the petitioner is liable to pay. There is also no reasonings as to why there is no error apparent on the face of the record. For this reason, the impugned order dated 02.02.2024 is liable to be set aside. If pursuant to a Rectification Application, if a rectification is made and if it adversely affects the assessee,....... + More

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• 2024 (12) TMI 56
  Rejection of Petitioner s Appeal and Rectification Application on the ground that the board resolution filed along with the Appeal memo was defective - HELD THAT:- There is no serious defect based upon which the Appeal or the Rectification Application could have been rejected. Similar objections were made by the same officer rejecting about less than hundred matters on the alleged ground of defective resolutions. In DELPHI WORLD MONEY LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER (APPEALS-II) CGST CENTRAL EXCISE, MUMBAI, COMMISSIONER OF CGST AND CENTRAL EXCISE, RANGE 1, DIVISION III, MUMBAI. [ 2024 (11) TMI 781 - BOMBAY HIGH COURT] , earl....... + More

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• 2024 (12) TMI 55
  Violation of principles of natural justice - service of SCN - impugned order is challenged on the premise that neither the show cause notices nor the impugned order of assessment have been served by tendering to the petitioner or by registered post, instead it was uploaded in the common portal - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a p....... + More

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• 2024 (12) TMI 54
  Challenge to validity of Section 16 (4) of the Central Goods and Services Tax Act, 2017 - setting aside the Notification dated 31.03.2023 issued by the Ministry of Finance (Department of Revenue), whereby the time limit was extended for passing the orders under Section 73 of the CGST Act - HELD THAT:- The impugned order dated 28.01.2024 passed by the respondent No.4 is set aside. The matter is remitted to the respondent No.4 to decide the matter afresh in accordance with the provisions of Section 16 of the CGST Act, as amended, after providing an opportunity of hearing to the petitioner, within a period of 2(two) months from the date of prod....... + More

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• 2024 (12) TMI 53
  Cancellation of GST Registration of the Petitioner - no-filing of returns u/s 39 of the Central Goods and Services Tax Act, 2017 - cancellation of registration without assigning any reason - non-application of mind - violation of principles of natural justice - HELD THAT:- A perusal of the impugned order dated 06.04.2022 would show that the said order is passed by a quasi-judicial authority. The effect of the said order would be that in absence of a registration, the petitioner cannot carry out his business. Therefore, the effect of the said impugned order would entail civil consequences. If this Court peruses the order, it is shocking that ....... + More

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• 2024 (12) TMI 52
  Rejection of appeal preferred by the Petitioner herein against the Order of Adjudicating Authority dated 20th of December, 2023 - rejection on the ground that it was barred by limitation - rectification of the Order passed by the Adjudicating Authority - HELD THAT:- From perusal of the certificate issued by the Executive Engineer, R B, Division Kupwara dated 26th of July, 2024, it transpires that, prima facie, there is some mistake committed by the Executive Engineer concerned in uploading the TDS against the Permanent Account Number (PAN) of the Petitioner. We are not sure as to whether this aspect of the matter, if brought to the notice of....... + More

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• 2024 (12) TMI 51
  Permission to rectify/ amend the GST number of the purchaser in GSTR-1 return with respect to the invoices dated 13.05.2021 (on account of human error) for the quarter ending 30.06.2021 after the limitation period is expired in terms of Section 37 (3) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The process as submitted by learned counsel for the Revenue is complete in itself and each step precedes the earlier step. If one of the steps is erroneous and the same is not corrected or rectified within the timeline provided under the provisions, a cascading effect would occur to the subsequent process provided under the subsequen....... + More

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• 2024 (12) TMI 50
  Seeking grant of anticipatory bail - fraudulent claims of Input Tax Credit (ITC) - creation of fake forms - forging and fabrication of fake bills showing inter se transactions of sales and purchases - HELD THAT:- The allegations are broadly to the effect that the petitioners had availed of Input Tax Credit by raising false bills and showing fictitious transactions effected through dummy firms which were actually not in business. Such allegations, on the face of it would certainly attract offence under IPC for allegedly availing Input Tax Credit fradulently on the basis of false documents and sham transactions. At the same time, since fraud h....... + More

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• 2024 (12) TMI 49
  Maintainability of petition - availability of alternative remedy - Challenge to Order-in-Original and Summary of the Order - entitlement to Input Tax Credit [ITC] in respect of purchase of coal - refund of ITC on zero-rated supplies - violation of principles of natural justice - HELD THAT:- It is well settled that ordinarily in revenue matters, the court does not entertain a petition for a writ under Article 226 of the Constitution of India, where the petitioner has a statutory remedy, which without being unduly onerous, provides an adequate and efficacious remedy. The High Court in its writ jurisdiction, does not generally enter upon a dete....... + More

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• 2024 (12) TMI 48
  Maintainability of petition - Availability of statutory remedy under Section 107 of the CGST/AGST Act, 2017 - Challenge to Order-in-Original and Summary of the Order - Input Tax Credit [ITC] in respect of purchase of coal - freezing of the petitioner's bank account - violation of principles of natural justice - HELD THAT:- It is well settled that ordinarily in revenue matters, the court does not entertain a petition for a writ under Article 226 of the Constitution of India, where the petitioner has a statutory remedy, which without being unduly onerous, provides an adequate and efficacious remedy. The High Court in its writ jurisdiction,....... + More

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• 2024 (12) TMI 47
  Legality of the Order-in-Original and Summary of the Order under the CGST/AGST Act, 2017 - Entitlement of the petitioner to Input Tax Credit (ITC) - refund of ITC on zero-rated supplies - after submission of the reply by the petitioner seeking time, the Adjudicating Authority did not apprise the petitioner about the next date of hearing in connection with the Demand cum- Show Cause Notice under reference - violation of principles of natural justice - HELD THAT:- It does not emerge from the facts of the case that the petitioner was not provided with any kind of prior opportunity and hearing before issuance of the impugned Order-in-Original. I....... + More

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• 2024 (12) TMI 46
  Condonation of delay in filing the appeal - Cancellation of registration of the petitioner - appeal against the cancellation of GST registration was filed within the prescribed limitation period - HELD THAT:- It is not in dispute that after service of the impugned order dated 04.03.2023, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the limitation - Further, before this Court also, petitioner has failed to give any good ground for condonation of delay, therefore, this Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders. The Apex Court in the case of Singh Ent....... + More

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• 2024 (12) TMI 45
  Seeking reimbursement of extra GST amount paid - grievance of the petitioner is that despite the enhancement from 01.01.2022, the respondents are paying the running bills with 12% GST and the petitioner is paying 18% GST - HELD THAT:- Respondents No. 2 3 filed a return raising baseless objection regarding maintainability of writ petition, and availability of alternative remedy under the Arbitration Act - Needless to say that no disputed question of facts are involved in this case, therefore, the petitioner cannot be relegated to the Dispute Resolution Form as provided under the agreement. Respondent No.4 which is a State GST Department, acco....... + More

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Case Laws - Customs

• 2024 (12) TMI 65
  Refund claim being the excess payment of duty held as refundable consequent upon the passing of the Order-in-Original - original authority rejected the refund claim on the ground that the original Bills of Entry and their duty payment documents that is TR-6 challans were not placed on record. Secondly, since the assessments were provisional and the above order finalising the provisional assessments, the PD bonds were to be finalised and cancelled; and the cancellation of PD bonds was also not placed on record and no evidences was produced to prove unjust enrichment HELD THAT:- The Order-in-Appeal which was relied upon by the authorities to r....... + More

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• 2024 (12) TMI 19
  Import of Baggage - Personal Effects - Detention and confiscation of gold ornaments by Customs authorities - petitioner had travelled from Bengaluru to Dubai and and opted for the green channel. She was intercepted by a Customs Officer after she had crossed the green channel. On her search, one plastic box containing 3 gold bangles, weighing 130 grams, 15 gold beads (parts of bracelets) weighing 89 grams were recovered - According to the respondents, all jewellery and ornaments, personal or otherwise, is liable to be viewed as prohibited goods in addition to being subject to the restrictions contained in the 2016 Rules - as argued phrase bri....... + More

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• 2024 (12) TMI 18
  Demand of interest - Recovery of wrongly availed amount against duty credit scrip as rewards formulated for Service Exports from India Scheme - Foreign Trade Policy authoring the levy of interest u/s 28AA of the Customs Act, 1962 - HELD THAT:- No provision of the 1992 Act under which Foreign Trade Policy has been framed has been pointed out to show that the provisions of Section 28AA of the 1962 Act have been made applicable for levying interest on any person who is found ineligible for any benefit received under the terms of any Scheme under the Foreign Trade Policy. It is true that Chapter 3 of the Foreign Trade Policy which was in operati....... + More

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• 2024 (12) TMI 17
  Duty Drawback - Mis-declaration of export goods - adjudicating authority confiscated the said exported goods for their mis-declaration and gave option to redeem the same on payment of redemption fine u/s 125 of Customs Act, 1962 and imposed penalty u/s 114(iii) of the Customs Act, 1962 - HELD THAT:- This is a case of drawback where the allegation is that the goods exported merited classification under CTH 6200 2000 and 6005 2000 as against CTH 6205 9090 and 62059090 as declared by the appellant, which meant that the appellant was actually entitled to drawback of Rs1,19,224/- as against Rs.1,39,618.79 claimed by them, thus resulting in an exc....... + More

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• 2024 (12) TMI 16
  Classification of imported goods - Import of prepared additives for cements, mortars or concretes - classification defect owing to which differential duty was ordered for recovery - General Rules for Interpretation of Import Tariff - HELD THAT:- Though the first appellate authority had affirmed the classification against tariff item 3505 1090 of First Schedule to Customs Tariff Act, 1975, it would again appear that the finding therein was devoid of any support to indicate that the goods are other modified starches or other than dextrins with the sub-heading. On the other hand, the claim of the appellant herein that the product is exclusively....... + More

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• 2024 (12) TMI 15
  Anti dumping duty (ADD) - Color coated aluminum coils imported as coated with Styrene/ Butyl Methacrylate Copolymer other than PE/ PVDF liable to anti dumping duty or not? - HELD THAT:- We find that on the basis of these directions, TRU vide Circular No.45/2017- Customs (ADD) dated 22.11.2017,clarified that- color coated aluminum foil with either PE (Polyester) coating of PVDF (Fluorine- carbon), coating falling under CTH 7607 is excluded from the scope of PUC. We also observe that although the Tribunal has in para 9 of their order in the matter of G. M. Alloys [ 2017 (11) TMI 491 - CESTAT NEW DELHI] specifically directed to exclude color co....... + More

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• 2024 (11) TMI 1362
  Classification of imported goods - Binding Material, Parts for Brake, disc brake pads, tool for mould, etc . - to be classified under CTH 38249090 / 38247900 or CTH 68138900? - benefit of N/N. 152/2009-Cus. dated 31.12.2009 and also N/N. 50/2017-Cus. dated 30.06.2017 - invocation of Extended Period of limitation. As decided by CESTAT [ 2024 (10) TMI 17 - CESTAT CHENNAI] Respondent s classification of the impugned goods under Chapter Heading 3824 9090/3824 7900 is rejected and the department s classification under CTH 6813 8900 is upheld. Consequently, the appellant is not eligible for the benefit of the Notification No. 50/2017-Cus. dated 30....... + More

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• 2024 (11) TMI 1361
  Challenge to the decision rendered by CESTAT - appellants right to question the enhancement made concerning the valuation of the imported goods, once the appellants had given up their right to seek issuance of a show cause notice and/or speaking order under Section 17 of the Customs Act, 1962 - Decision to enhance the declared values relied exclusively on data from the NIDB - Declared values and the power of reappraisal - HELD THAT:- Section 17 (5) then proceeds further and constitutes the next fundamental step which the statute constructs in respect of reassessment. Shorn of unnecessary details, it prescribes that where the reassessment don....... + More

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• 2024 (11) TMI 1360
  Partial rejection of benefit under Merchandise Exports from India Scheme (MEIS) - mismatch between the description of the goods in the shipping bills and the description in ITC (HS) 87085000 - HELD THAT:- No reasons are indicated why the Respondent s case was accepted or why the Petitioner s case was rejected. There is no discussion on the RA report or comments from PC-3 Divisions. On perusing the minutes, it is impossible to understand whether there was any application of mind. This is an additional reason to interfere with the impugned decision. In the reply filed on behalf of the Respondents, significantly, neither is the copy of the RA s....... + More

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• 2024 (11) TMI 1359
  Appeal filed against order of Commissioner (Appeals) remanding the matter to the original adjudicating authority - Sole ground mentioned in the impugned order for rejection of the request made by the appellant is delay of more than three months from the date of let export order - HELD THAT:- We find that the impugned order though signed by Deputy Commissioner (Exports), Customs House, Mundra has been rejected by the competent authority. In the instant case the competent authority was the Principal Commissioner of Customs, consequently the appeal has been filed before the Tribunal. The said limitation of three months was introduced by the Cir....... + More

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• 2024 (11) TMI 1358
  Rejection of Refund claim of 4% SAD levied under sec. 3(5) of the Customs Tariff Act, 1975 for import of adapter plate, power and control cables and APC receiver - mandatory endorsement as required under Notification No. 102/2007-Cus dated 14.9.2007 has not been made - HELD THAT:- The issue is no longer res integra in the light of the Larger Bench decision in Chowgule Company [ 2014 (8) TMI 214 - CESTAT MUMBAI (LB)] Tribunal examined a reference of a related matter as to whether to avail the benefit of Notification No. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the str....... + More

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• 2024 (11) TMI 1357
  Refund application filed beyond the time limit specified u/s 11B - refund claim was filed which is beyond six months from the date of payment of duty and rejected the claim as being time-barred as well as holding that the assessment order was not challenged in a manner known to law - HELD THAT:- Amounts claimed were part of the export duty only and until final assessments are done, the excess duty paid cannot be quantified. This being so he should have remanded the matter back to the file of the Lower Authority to examine the claim after finalization of the assessment apart from the fact that the Original Authority had decided the matter ex-....... + More

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• 2024 (11) TMI 1356
  Refund claim - rejection of refund claim for non-fulfillment of conditions 2(e)(iii) since the date of sales invoice being prior to out-of-charge and he also rejected the claim for non-fulfilment of condition 2(c) of Notification No. 102/2007 dated 14.9.207, since the refund claim pertained to Kolkata Port. Whether the degree of negligence is so high that a substantive matter of refund is to be denied due to a procedural lacuna? - HELD THAT:- As since the refund was filed on time albeit in the wrong jurisdiction the claim could not have been rejected on the ground of time bar but should have been transferred to the Competent Authority. That ....... + More

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• 2024 (11) TMI 1355
  Classification and duty liability - Import of diagnostic reagents on which liability to duties of customs was determined, under section 17 of Customs Act, 1962 - denial of benefit of notification no. 50/2017-Cus dated 30th June 2017, as also recourse to serial no. 453 of Schedule III of IGST notification no. 01/2017 (Integrated Tax Rate) dated 28th June 2017 for discharge of integrated tax for the purpose of section 3(7) of the Customs Tariff Act affirmed the detriments to them - claim for assessment at rate of duty corresponding to tariff item 3822 0090 of First Schedule to the Customs Tariff Act has been wrongly denied and that observance ....... + More

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• 2024 (11) TMI 1354
  Rejection of cross-examination of six DRI officers and one co-noticee by the competent authority - HELD THAT:- Main objective of cross-examination is to challenge the accuracy, credibility, and reliability of the testimony provided by any witness in a proceedings before the Original Authority. Cross-examination of a witness can be requested when his statement is used against the appellant in adjudication proceedings which is not the situation in this case. This is a case where cross examination is sought mainly of DRI officials who have recorded statements of individuals. The officers have no personal interest in the matter. It is not the ca....... + More

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• 2024 (11) TMI 1353
  Chargeability of Clean Energy Cess on Metallurgical Coke imported - Rejection of appeal filed by the appellant on the ground of time bar and maintainability - HELD THAT:- We observe that the Bills of Entry were filed in the months of January and February 2015. The appellant has not raised the issue for more than a year. The appellant raised the issue of non issue of order u/s 17(5) of the Customs Act, 1962, after more than one year from the date of clearance of the goods. A perusal of the Bills of Entry shows that the Bills of entry were finally assessed and there was no re-assessment. Thus, we do not find any merit in the claim of the appel....... + More

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• 2024 (11) TMI 1291
  Non-payment of interest on refund u/s 18(4) of the Customs Act 1962 on account of finalization of provisional assessment - on completion of the specified quantity of import under the contract, the provisional assessments were finalized and an amount was ordered to be refunded - No interest was paid to the appellant on such delayed payment which is payable as per Section 18(4) read with Section 27A of the Customs Act 1962 HELD THAT:- From the Section 18(4) read with Section 27A of the Customs Act 1962, we observe that upon finalization of provisional assessment, if there is a refund liable to be paid, then it is to be paid within 3 months fro....... + More

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• 2024 (11) TMI 1244
  Classification of imported goods - Clear Float Glass (CFG) - to be classified under Tariff Item 7005 10 90 or under CTH 7005 2990 of the Customs Tariff Act (CTA) or not - benefit of exemption under Sl.No.934 (I) of Notification 046/2011-CUS dated 01.06.2011 - As decided by CESTAT [ 2023 (11) TMI 485 - CESTAT KOLKATA] Clear Float Glass imported by the appellant are absorbent and having non-reflecting layer, in that circumstances, the appellant has qualified the merit classification under CTH 7005 1090, therefore, the correct classification of the Clear Float Glass imported by the appellant under the impugned Bills of Entry is classifiable und....... + More

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• 2024 (11) TMI 1243
  Classification of BAYLAN branded water meters - Tariff Item No. 9026 10 10 subject to nil rate of Customs duty v/s Tariff Item No. 9028 20 00 subject to pay Customs duty at the rate of 7.5% - HELD THAT:- On going through the parameters set by the Indian Standards [IS 2401:1973 and ISO 4064] we find that all these parameters are required to be followed for import of water meters . From the brochure submitted by the Appellant, it is clearly seen that the equipment pertains to water meters only. When the factual details and the documentary evidence produced very clearly point out that the goods are water meters only, we do not see the reason as....... + More

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• 2024 (11) TMI 1242
  Levy of penalty - Customs Broker - Import w/o payment of Customs duty under Advance Authorization - sale of consignments on High Sea Sale basis - confiscation of goods when any goods do not correspond in respect of value or any other particular - On the basis of information received from the DRI, Pune that the imports made by M/s Blazeing Star Trade Pvt. Ltd. under Advance Authorization appears to be suspicious, enquiry was initiated and on being reported by CGST, Dehradun that the said importer firm is non-existent at the declared address Whether the Appellant and its proprietor are liable to pay penalty u/s 112(a)(ii) and 114AA of the Act,....... + More

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Case Laws - Corporate

• 2024 (11) TMI 1290
  Rejection of Application filed by Petitioner for rectification/change in the name of the Respondent No. 4 Company - Section 16 (1) (b) of the Companies Act, 2013 - HELD THAT:- Section 16 of the Companies Act gives the power to the Central Government through the Office of the concerned Regional Director [hereinafter referred to as RD ] to rectify the name of a company. Sub-Section (1) of Section 16 of the Companies Act contemplates two circumstances under which the name of a company can be rectified. If such name resembles the name of an existing company or is identical to the name of an existing company, the RD may suo moto under the provisi....... + More

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• 2024 (11) TMI 1083
  Oppression and mismanagement under Sections 241 and 242 of Companies Act, 2013 - seeking a waiver for initiation of the proceedings under Section 244(1)(b) of the Companies Act, 2013 - HELD THAT:- The intention of legislature by introducing the proviso to Section 244 of the Companies Act, to grant a waiver is by way of an exception to the general law. It is not a waiver by conduct or by way of a right. Waiver herein would mean that a person is granted an exemption, in special circumstances from satisfying the pre-established conditions for instituting a judicial proceeding. In that eventuality, the concept of waiver under the proviso to Sect....... + More

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• 2024 (11) TMI 1010
  Liquidation of Corporate Debtor - seeking for issue of an appropriate direction to the liquidator to put on hold the auction of the immovable asset of the Corporate Debtor, to consider his proposal to sell the Corporate Debtor as a going concern - It is the contention of the Appellant that his Resolution Plan was rejected without due diligence - principles of res-judicata - HELD THAT:- This Application came up for consideration before the Learned Adjudicating Authority and the Learned Adjudicating Authority after considering the text of the relief sought in IA No.140/2022, had dismissed by observing that it was on the same grounds / prayers ....... + More

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• 2024 (11) TMI 1009
  Oppression and Mismanagement - invocation of provisions contained under Section 96, 173, 241, 244 of the Companies Act of 2013 - Applicability of Section 8 of the Arbitration and Conciliation Act, 1996 - Appellant/ Respondent, had not produced the Original Copy of the Agreement, nor the Appellant has supplied the certified copy of the said agreement - whether the Authenticated copy of the agreement as filed by the appellant in support of IA No.65/2019, could at all be read in parlance to the certified copy of the Arbitration Agreement or the Original of the Arbitration Agreement? - HELD THAT:- Obviously, under law the certification of a docu....... + More

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• 2024 (11) TMI 1008
  Amendment of scheme of amalgamation - section 230-232 read with section 234 of the Companies Act, 2013 - Jurisdiction of NCLT to modify the scheme - HELD THAT:- The amendment can therefore be done at any stage. In IN THE MATTER OF :. HAMBURG SUD INDIA PRIVATE LIMITED, MAERSK LINE INDIA PRIVATE LIMITED [ 2023 (3) TMI 1541 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH-IV] , the Ld NCLT Mumbai while seized of a First Motion Petition passed directions for changing the valuation and the swap ratio. Admittedly the present modification to scheme will not require any further / revised adherence in so far as the regulations for inbound merger are conc....... + More

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• 2024 (11) TMI 881
  Appointment of Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 - adjudication of penalties - HELD THAT:- In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to Khattu Housing Solutions Private Limited and its director in default mentioned herein and also to Office of the Regional Director (Eastern Region) and Ministry of Corporate Affairs at New Delhi.

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• 2024 (11) TMI 880
  Appointment of Registrar of Companies, Chennai as Adjudicating Officer in exercise of the powers conferred by section 454(1) of the Companies Act, 2013 - Non-compliance of the Companies Act, 2013 - HELD THAT:- It is concluded that the company and directors have violated Rule 14(6) of (Companies Prospectus and Allotment of Securities), Rules, 2014. It is required to impose a penalty as prescribed under Section 450 of the Companies Act, 2013. Therefore, in view of the above said violation, in exercise of the powers vested to the undersigned under Section 454(1) (3) of the Companies Act, 2013 a penalty of Rs. 10,000/- is imposed on the Company ....... + More

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• 2024 (11) TMI 803
  Oppression and Mismanagement - Dispute between two shareholders/directors affecting company operations - failure to make statutory compliances, legal authorization etc. - HELD THAT:- Apparently, the company is not able to complete the statutory and legal compliances due to differences between the Directors. The Learned Counsels for the Appellant and Respondent in their submissions are ad idem regarding differences between the Directors leading to non-compliances of statutory and legal requirements of the company. In the interest of the company, the Ld. NCLT is requested to nominate an independent Director to the Company for meeting of Board ....... + More

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• 2024 (11) TMI 555
  Transfer of shares - issuance of duplicate share certificate - whether a Writ would lie against Respondent No. 3-NSE? - HELD THAT:- Respondent No. 3-NSE in their affidavit-in-reply in paragraph No. 5 have stated that they have been incorporated to facilitate, promote, assist, regulate and manage the public interest and dealings in securities of all kinds, and to provide specialized, advanced, and modern facilities for trading, clearing and settlement of securities with a high standard of integrity and honour and to ensure trading in transparent, fair and open manner - The impugned communication dated 4 October 2007 states that stop transfer ....... + More

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• 2024 (11) TMI 299
  Doctrine of Merger - Jurisdiction of the respondent to adjudicate stamp duty under sections 31 and 33 of the Indian Stamp Act, 1899 - challenge to impugned order on the grounds that the respondent misinterpreted and misapplied Delhi Towers Ltd. while passing the impugned order - HELD THAT:- The meaningful reading of section 47A reflects that it pertains to instruments which can be registered under the Registration Act, 1908. Section 47A (3) confers suo-motu power on the respondent to call for and examine any instrument to satisfy himself as to the correctness of its value or consideration and the duty payable thereon. However, such suo-motu ....... + More

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• 2024 (11) TMI 298
  Sanction of scheme of Arrangement - transfer of employees - takeover of employees of the ATM and Cash Management Division of Respondent No.2 as the appellant s employees - HELD THAT:- The records reveals the Scheme was fully implemented in April 2011 to the knowledge of Respondent No.1 union and thereafter there have been multiple wage settlements entered into for benefit of Respondent No.1 after the implementation of the Scheme and there were no objections to the implementation thereafter. As stated the entire problem started in 2015 when the Members of Respondent No.1 resorted to flash strikes without any justifiable reasons and without an....... + More

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• 2024 (11) TMI 266
  Requirement of digital signatures for processing Form CHG-1 for charge registration - Section 78 of the Companies Act, 2013 - HELD THAT:- This Court is of the view that Section 78 of the Act is resorted to only after a company has failed to register a charge as mandated under Section 77 of the Act thereby indicating a lapse or refusal on the part of the company to fulfil its statutory obligations. In such cases, expecting a person in whose favour the charge is created to obtain digital signatures from the company itself contradicts the very scenario Section 78 is designed to address. This stance is further supported by the instructions for f....... + More

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• 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

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• 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

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• 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.

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• 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

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• 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

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• 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

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• 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

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• 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

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Case Laws - IBC

• 2024 (11) TMI 1352
  Admissibility of petition - initiation of CIRP - Validity of demand for interest and repayment of principal amount by the Financial Creditor - Existence of debt and default or not - Time limitation - HELD THAT:- As per provisions of Section 5(8) of IBC, 2016, financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money. In the present case money has been disbursed to the Corporate Debtor towards time value of money and interest is shown as due in the ledger accounts of the Corporate Debtor. The total interest due is more than Rs. 1 crore and was demanded by the Financial Cre....... + More

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• 2024 (11) TMI 1351
  Admission of section 7 application - Respondent No. 1 and Respondent No. 2 are related parties, who in collusion and connivance with the ex- management/promotor/director/shareholder of Respondent No. 1 i.e. Respondent No. 3 to 5 initiated the CIRP - HELD THAT:- The Respondent No. 3 who happened to be a director and shareholder in all three companies, namely, Navayuga, Respondent No. 1 and Respondent No. 2. In Navyuga he is director and 21.77% shareholder, in Respondent No. 1 he was a Promotor and director till 2015 and 33.34 % shareholder and in Respondent No. 2 he is a director 66.66% shareholder which shows that this case shall come within....... + More

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• 2024 (11) TMI 1289
  Entitlement to raise an objection to the Resolution Plan - Whether the appellant, GNOIDA, is to be treated as a financial creditor? - HELD THAT:- The appellant, GNOIDA, will be entitled to raise all claims in this regard in accordance with law and in terms of the provisions of the Insolvency and Bankruptcy Code, 2016. Recording the aforesaid, the appeal is dismissed.

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• 2024 (11) TMI 1288
  Maintainability of Section 9 application - rejection due to pre-existing disputes - operational debt - whether there is any infirmity in the impugned order passed by the Adjudicating Authority dismissing the Section 9 application on the ground that the operational debt claimed by the Appellant was embedded with pre-existing disputes? HELD THAT:- It is clear from the agreement arrived at the meeting held on 26.01.2021 that the Operational Creditor had agreed to replace the defective pump sets and meet the standards as per the tender conditions which is a clear admission on their part for having been unable to discharge their obligations up to....... + More

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• 2024 (11) TMI 1287
  Re-constitution of the Committee of Creditors (CoC) by excluding Appellants - misinterpretation of provisions of Section 140 of the Indian Contract Act - Application filed by the Central Bank of India, Appellants were not heard - violation of principles of natural justice - whether the Appellant are the Financial Creditor of the Corporate Debtor and they are entitled to be part of the CoC as has been allowed by the RP, which inclusion has been set aside by the Adjudicating Authority by the Impugned Order? HELD THAT:- The plain language of Section 5(8)(i) clearly indicates that any of the Guarantee or indemnity for any of the items referred t....... + More

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• 2024 (11) TMI 1286
  Service of demand notice - whether petition filed under Section 95 was premature? - appellant argued that period of service of demand notice has to be counted in terms of Section 95(4)(b) of the Code and the period mentioned in the guarantee agreement should not be taken into consideration - HELD THAT:- The facts are not in dispute that a personal guarantee deed was executed on 27.07.2011 amongst the Appellant as a lender, SPIL as the Borrower and Respondent No. 2 as the Guarantor. Clause 3 of the said agreement categorically lays down that the Guarantor would pay the amount of ICD of Rs. 1 Cr. 75 Lac to the lender within 60 days from the da....... + More

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• 2024 (11) TMI 1236
  Dismissal of Company Appeal against the order admitting an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 - existence of pre-existing dispute has not been proved - HELD THAT:- The appellants have not placed on record even the proof of dispatch of the letters and the Notice referred above, leave apart, the proof of service. More pertinently, while replying to the Demand Notice dated 26th April, 2017 issued by the respondent under Section 8 of the IBC, none of the letters and the Notice referred above have been referred to and relied upon. In the absence of the proof of dispatch and/or service of the letters and the Sh....... + More

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• 2024 (11) TMI 1235
  Condonation of delay of 4486 days in filing the appeal to assail money recovery decree - benefit under Section 14 of the Limitation Act - professional misconduct of the counsel of appellant. HELD THAT:- The delay in filing the appeal is not for an insignificant period; it is an inordinate delay of 4486 days. The impugned judgment and decree being dated 18.09.2012, the period of limitation prescribed for filing appeal expired on 17.12.2012. The delay till 29.11.2019 (the date of filing of application under Order IX Rule 13 CPC) has been attributed by the appellant company to the professional misconduct of their erstwhile counsel. The appellan....... + More

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• 2024 (11) TMI 1234
  Dismissal of Section 7 application filed by the Appellant - financial debt or not - share application money in respect of the shares not allotted - whether in the facts of the present case, the share application money which was deposited with the Corporate Debtor by the Appellant fell in the category of Section 5(8) of the IBC? - HELD THAT:- The basic ingredients which are required to be met for a debt to become financial debt are that there must be a disbursal against the consideration for time value of money. Further sub clauses (a) to (i) of Section 5(8) delineates the various transactions which are included in the ambit of financial debt....... + More

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• 2024 (11) TMI 1186
  Seeking equitable treatment with that of other creditors in class - seeking amendment of the Information Memorandum (IM) reflecting the units of the Appellants as cancelled - seeking refund of the amount paid - HELD THAT:- It is to be noted that it is the duty of the RP to collate all the claims filed before him and verify the same from the books of the Corporate Debtor. The submission of the RP agreed upon that it lacks adjudicatory powers on the claims filed before him. The RP could not have reversed the action of cancellation taken by the Corporate Debtor prior to the initiation of CIRP. Even though the allotment were cancelled by erstwhi....... + More

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• 2024 (11) TMI 1143
  Cancellation of sale certificate issued by the Respondent - Appointment of a local commissioner to verify the machinery mentioned under the tender document and as per valuation report annexed to the application - Grant of Stay on auction going to be conducted on 08.02.2022 by the liquidator - HELD THAT:- In the present case, admittedly the Sale Certificate was issued to the Successful Bidder, after issuance of Sale Certificate on 08.11.2021, it is failed to see any relevance of LoI which was referred to in Clause 9. Under the Liquidation Regulation 2016, there is a statutory requirement of payment of bid amount within 90 days. The submission....... + More

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• 2024 (11) TMI 1142
  Locus of the Appellant to file the Appeal - nonfulfillment of threshold for filing a Section 7 application under the Insolvency and Bankruptcy Code (IBC). Whether the appellant has locus to file this Appeal? - HELD THAT:- By admission of Section 7 Application, the Corporate Debtor or allottees of project may have any grievance, a person, who is neither allottee of the project, nor has any stake in real estate project, which is subject matter of the insolvency, cannot be allowed to challenge the order admitting Section 7 application. Section 7 application has been admitted on account of debt and default by the Corporate Debtor, who committed ....... + More

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• 2024 (11) TMI 1141
  Rejection of liquidator's claim by the workmen - closure of factory - violation of the provisions of the Industrial Dispute Act, 1947 - HELD THAT:- From the facts brought on the record, it is clear that the corporate debtor ceased to work from June, 2010 and according to the case of the Appellants themselves, they worked in the factory till April 2012 only. The claim was filed by the Appellants who were asked by the liquidator to submit evidence to substantiate the claims. No satisfactory evidence having been produced by the Appellant that they were in the employment of the corporate debtor on the date of commencement of the liquidation,....... + More

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• 2024 (11) TMI 1140
  Condonation of 26 days delay in filing the Appeal - sufficient cause for delay or not - admission of Section 95 Application filed by the State Bank of India (SBI) against the Appellant, Sanjay Jain - whether the Appellant has made out the case for condonation of 26 days delay as prayed in the Application? - HELD THAT:- Law is well settled that this Tribunal has no jurisdiction to condone delay beyond 15 days. The Hon ble Supreme Court in the matter of National Spot Exchange Limited. Vs. Anil Kohli, Resolution Professional for Dunar Foods Limited, [ 2021 (9) TMI 1156 - SUPREME COURT ], has held that Appellate Tribunal has no jurisdiction at a....... + More

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• 2024 (11) TMI 1082
  Exclusion of commercial spaces from the assets of the Corporate Debtor - owners of the units allotted, on the basis of allotment of commercial spaces by the CD - dissenting Financial Creditors - entitlement for the amount as per Section 30, sub-section (2)(b) of IBC - sufficient grounds to interfere with the order passed by the Adjudicating Authority, approving the Resolution Plan. Whether the units allotted to commercial space buyers (the Appellant(s) herein), required to be excluded from the assets of the Corporate Debtor? - Whether the Appellant(s) on the basis of allotment of commercial spaces by the CD, by virtue of Lease Deed dated 24........ + More

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• 2024 (11) TMI 1054
  Maintainability of application - initiation of CIRP u/s 9 of the I B Code - performance pay - Operational Debt or not - Operational Creditor or not - issuance of Section 8 notice - HELD THAT:- Where a payment of a financial debt owing to the employment, if it is required to be arithmetically determined during the proceedings based upon a subjective satisfaction and application of criteria of performance pay, based upon the policy as referred to by the Learned Counsel for the Respondent i.e., 06.01.2019, that has to be read with the criteria of assessment of performance pay dated 24.04.2018, the amount claimed by the Appellant in his notice i....... + More

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• 2024 (11) TMI 1053
  Maintainability of Civil suit - bar under Order 7 Rule 11 of CPC - Ownership and possession rights of the Appellant over the disputed land during CIRP proceedings - bar u/s 238 of I B Code - specific case has been made that the property in question is being used for the industrial purposes of the Corporate Debtor, which is a fact not denied by the appellants and it was falling within the premises of the Corporator Debtor which is already in custody of the Resolution Professional - HELD THAT:- The orders under Section 7 were reserved on 06.02.2023 and the Corporate Debtor itself vide its Diary No. 5214 dated 02.12.2022, had stated that it sig....... + More

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• 2024 (11) TMI 1052
  Rejection of application filed by the Appellant under Section 10 of the Insolvency and Bankruptcy Code, 2016 - proceedings under Section 13, sub-section (2) of the SARFAESI Act was initiated by the SBI against the Appellant prior to filing of Section 10 Application - main reason for dismissing Section 10 application is that Applicant has filed Section 10 application with malicious and fraudulent intent to delay and halt the recovery proceedings initiated by Respondent Bank - whether filing of an application by the Appellant under Section 10, can be termed as initiation of proceedings with fraudulent and malicious intent? - HELD THAT:- The ba....... + More

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• 2024 (11) TMI 1051
  Rejection of Section 9 Application filed by the Appellant - pre-existing disputes - dispute existed much before Demand Notice was issued - inflated invoices - HELD THAT:- When the Corporate Debtor is entitled to all rights, interests and has to discharge all liabilities obligations of Transferor under the Principal Agreement, any entitlement or liability of it, which flow from the Master Service Agreement has to be shouldered/claimed by the Corporate Debtor. It cannot be said that inflated invoices which is claimed to have been issued by staff and employees of the Appellant though related to the different Project under the same Master Servic....... + More

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• 2024 (11) TMI 1050
  Maintainability of the appeal by a shareholder under Section 61 of the Insolvency and Bankruptcy Code, 2016 - pre- existing dispute between the appellant and Corporate Debtor/Respondent No.1 or not - interpretation of dispute under Section 5(6) of the code - HELD THAT:- The disputes related to shareholder oppression or mismanagement under the Companies Act, 2013 are distinct issues governed by separate statutory provisions and fall outside the purview of the Code. As a special statute, the IBC prevails over the Companies Act pursuant to Section 238, which has been affirmed by the Hon ble Supreme Court in Innoventive Industries Ltd. v. ICICI ....... + More

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Case Laws - PMLA

• 2024 (11) TMI 1350
  Money Laundering - cognizance of the offence by Trial Court - whether such cognizance was valid given the ongoing investigation? - retrospective applicability of Explanation-II to Section 44(1)(b) of the PMLA - impugned order passed without taking into consideration the entirety of the matter - violation of principles of natural justice - HELD THAT:- In Devarapally Lakshminarayana Reddy v. V. Narayana Reddy, [ 1976 (5) TMI 101 - SUPREME COURT] , the Hon ble Supreme Court elucidated the scope and purview of the term taking of cognizance and gave a detailed explanation thereof. It was observed that the stage, at which cognizance of an offence ....... + More

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• 2024 (11) TMI 997
  Seeking grant of regular bail - Money Laundering - conspiracy to fraudulently set up Vivo group of companies in India without revealing their true beneficial ownership and carried out mis-declarations before government bodies - concealment of Chinese ownership - Section 45 of the PMLA - HELD THAT:- Since the offence pertains to money laundering, apart from the usual considerations, it would have to be seen whether the twin conditions stipulated in Section 45 of the PMLA are met. A plain reading of Section 45 of the PMLA shows that the public prosecutor must be given an opportunity to oppose the application and the Court should have reasonabl....... + More

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• 2024 (11) TMI 996
  Money Laundering - scheduled offence - proceeds of crime - whether the properties purchased prior to the alleged commission of offence would not fall under the definition of proceeds of crime ? - HELD THAT:- In view of the fact that 'proceeds of crime' has been set out in the complaint impugned in the present petition and the identification of proceeds of crime also has been set out, the grounds raised by the petitioner deserves no merit consideration and all other grounds raised on merits or regarding appreciation of materials would be considered only by the Trial Court. However, the Trial Court while proceeding with the trial, has ....... + More

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• 2024 (11) TMI 995
  Money Laundering - sale proceeds of lottery tickets - challenge to closure report - offences punishable under Sections 294N, Section 420 and 120B of Indian Penal Code - HELD THAT:- A legislation when brought into force with a legislative intent does not stay in the same shape, as it was intended to be. Evolution of the legislation is inevitable in a growing country. The operation and implementation of the law decides that the legislation is taken forward in its intended spirit and force. Once the legislation is applied and tested, the consequences of such application determine the character and fate of the legislation. The objects of the PML....... + More

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• 2024 (11) TMI 927
  Seeking grant of regular bail - Money Laundering - proceeds of crime - financial irregularities - involvement in paper sale transaction without conducting any actual business transactions which resulted in false inflation of financials - Section 45 of PMLA - HELD THAT:- Apart from the statements of the witnesses recorded under Section 50 of PMLA, the data manifesting relationship of stock, turn over and borrowings by SBFL reflects that SBFL started taking loans from different banks with the help of inflated turn over and fictitious closing stocks. The fact that the stock worth Rs.3035.52 crores was declared as obsolete/damaged by pest withou....... + More

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• 2024 (11) TMI 833
  Money Laundering - attachment of property which were acquired prior to the scheduled offence - connection with the proceeds of crime or not - jurisdiction of impugned PAO on account of non-compliance of mandatory provisions of Section 5 (1) i.e. reason to believe - HELD THAT:- The concept of the property of equivalent value was introduced with respect to the aforementioned properties. The amendment enabled the authorities to go after any other property of a person of equivalent value. In 2019, the scope of the phrase proceeds of crime was further expanded so as to include other properties which were not directly or indirectly the proceeds of....... + More

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• 2024 (11) TMI 832
  Penalty u/s 26 of the Prevention of Money Laundering Act, 2002 - It was alleged that the appellant bank failed to make a report of cash transactions of high value or there was delay in making report, the heavy penalty of Rs. 25,70,000/- has been imposed - violation of Section 12(1)(b) of the Act of 2002 read with Rule 3(1)(A), 3(1)(B), 7(2) and 7(4) of the Rules of 2005 - HELD THAT:- Section 12(1)(b) requires reporting entity to furnish information of transactions referred to in clause (a) of sub section (1) of Section 12 of PMLA to the Director FIU India within such time as may be prescribed. From plain reading and careful consideration of ....... + More

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• 2024 (11) TMI 831
  Seeking lapse of the order of attachment in reference to Section 5(1) and (3) of the Act of 2002 - Legality of the attachment order under the Prevention of Money Laundering Act, 2002 - criminal conspiracy, cheating, and forgery in relation to the Slum Rehabilitation Scheme - Section 26 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The appellant has given reference of relevant dates which started with issuance of Provisional Attachment Order on 18.06.2021 followed by Show Cause Notice by the Adjudicating Authority on 04.08.2021. The reply to it was filed on 16.09.2021. The pleadings were then completed on 23.09.2021 and thereu....... + More

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• 2024 (11) TMI 794
  Money Laundering - proceeds of crime - Consideration of proceeds of crime regarding the refund amount from unsuccessful IPO applications - malpractices and manipulations indulged by certain individuals/entities for different Initial Public Offerings (IPOs) - forged documents - HELD THAT:- The SEBI has passed the order within the four corner of the provisions applicable therein. The reference of the order passed by the SEBI rather goes against the appellant and proves the allegation substantially. It is, however, only to the extent of determination of unlawful gains pursuant to the provision of Securities and Exchange Board of India Act, 1992....... + More

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• 2024 (11) TMI 793
  Attachment of immovable properties under Prevention of Money Laundering Act, 2002 (PMLA) due to non-compliance with Section 8(1) requirements - reasons to believe - HELD THAT:- In the instant case, reasons to believe were not conveyed to the appellant along with the notice issued by the Adjudicating Authority despite judgment of the various High Courts and even by this Tribunal holding that whenever a notice is caused by the Adjudicating Authority under Section 8(1) of the Act of 2002, reasons to believe recorded in writing have to be given to the defendants. However, the appellant was not given copy of the reasons to believe while issuing n....... + More

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• 2024 (11) TMI 670
  Seeking grant of regular bail - Money Laundering - predicate offence - misuse of position to appoint and engage relatives and other known persons to various posts in the DWB, from which they derived pecuniary benefits - HELD THAT:- A plain reading of Section 45 of the PMLA shows that the public prosecutor must be given an opportunity to oppose the application and the Court should have reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The twin conditions though restricts the right of accused to be released on bail but do not impose absolute restraint and the d....... + More

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• 2024 (11) TMI 593
  Seeking grant of bail - HELD THAT:- Taking into consideration the fact that the appellant is a lady having medical ailment, it is required to set aside the impugned order and grant bail to the appellant. The impugned order stands set aside and the appellant is granted bail subject to the terms and conditions that may be imposed by the Trial Court - Appeal allowed.

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• 2024 (11) TMI 296
  Requirement of prior sanction under Section 197(1) of the Code of Criminal Procedure, 1973 (CrPC) for prosecuting the respondents, who are public servants, under the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT:- The allegation against the second respondent is of allocating an additional 10 lakh litres of water to India Cement Ltd. Taking the averments made in the complaint against him as it is, the act alleged against him has been committed by him while purporting to act in the discharge of his official duties. The allegation against the first respondent is of the allotment of land measuring 250 acres to M/s. Indu Tech Zone P....... + More

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• 2024 (11) TMI 295
  Seeking permission to withdraw the present petition at this stage - HELD THAT:- The permission to withdraw is granted. The Special Leave Petition is dismissed as withdrawn.

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• 2024 (11) TMI 294
  Money Laundering - scheduled offences - smuggling of Red Sanders - applicability of first provisio or second proviso to sub-section (1) of Section 479 of the BNSS? - HELD THAT:- It is not in dispute that the maximum sentence for the scheduled offence under Sections 132, 135(1)(a)(ii) and 135(1)(b)(ii) read with Section 140 of the Customs Act, 1862 is three years. On facts, this is not a case where this Court should exercise powers under second proviso to sub-section (1) of Section 479 of the BNSS and deny the benefit of the first proviso. The appellant is ordered to enlarged on bail in terms of the first proviso of sub- Section 1 of Section ....... + More

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• 2024 (11) TMI 293
  Seeking grant of bail - Money Laundering - proceeds of crime - scheduled offence - partners of M/s Vikas Construction had encroached on public property by falsification of records - it was held by High Court that 'This Court is unable to persuade itself to form a, prima facie, satisfaction in terms of Section 45 of the PMLA, at this stage, that the applicant is not guilty or that he may not commit an offence on bail. Thus, for all the aforesaid reasons, the bail application is rejected.' HELD THAT:- Taking into consideration the peculiar facts and circumstances of the case along with the period of incarceration, the impugned order is....... + More

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• 2024 (11) TMI 292
  Confirmation of provisional attachment order - HELD THAT:- It will be open to the petitioner, Piyali Dutta Roy, to challenge the same by way of an appeal as provided by law. SLP dismissed.

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• 2024 (11) TMI 210
  Condonation of delay of 488 days in filing the special leave petition - Money Laundering - proceeds of crime - provisional attachment of property - gist of the objection raised by the ED is that the present writ petition is not maintainable in the High Court of Jharkhand - it was held by High Court that ' The respondent no.2 is directed to accept the amount of Rs.12 Lakhs tendered by the petitioner-company through bank draft in the name of Directorate of Enforcement payable at Ranchi which shall be deposited in the interest-bearing account till completion of the trial.' HELD THAT:- The delay cannot be condoned - SLP dismissed on the ground of delay.

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• 2024 (11) TMI 131
  Money Laundering - predicate offence - bail sought on medical grounds - applicability of Section 45(1) of PMLA - HELD THAT:- The proviso to Section 45(1) of PMLA specifically contemplates that a person who is sick or infirm may be released on bail if the Special Court so directs. The petitioner is 67 years old and has spent nearly a year and three months in custody. Based on the medical evaluation which has been provided by the Medical Team at Sir J J Group of Hospitals, Mumbai, it is evident that the petitioner fulfills the threshold required for being enlarged on bail. The petitioner is directed to be released on interim bail subject to su....... + More

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• 2024 (11) TMI 130
  Seeking grant of bail on medical grounds - HELD THAT:- Let a team of doctors examine the petitioner and give an appropriate report as regards the medical condition of the petitioner. List this matter on 14 October 2024.

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Case Laws - SEBI

• 2024 (11) TMI 738
  Validity of SEBI Settlement Proceedings Regulations - scope of Regulations 6(1)(f) and 13(2)(ba) of the SEBI (Settlement Proceedings) Regulations, 2018 - Communication by which the petitioners settlement proposal came to be rejected - non following specific condition precedent(s) that they would have to comply with for consideration of their settlement applications - allegation of petitioners conduct of stalling or delaying the adjudication of the SCN. Allegations about the noticees acting in concert while acquiring shares of Abans Enterprises Ltd. (AEL) without making the required disclosures under the SAST Regulations. There are allegation....... + More

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• 2024 (11) TMI 617
  Proceedings against executive director for the alleged fraudulent activities of the company - as argued petitioner had tendered resignation and resigned from the said Amrit Projects Limited and all its group of companies in the year 2013 - HELD THAT:- An executive director is a senior-level executive responsible for the overall management and leadership of an organization. The executive director reports to the board of directors and is responsible for setting the strategic direction for the organization, overseeing day-to-day operations, and ensuring the organization s goals and objectives are met. Executive directors are appointed by the bo....... + More

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• 2024 (11) TMI 529
  PIL seeking several reliefs to deal with the menace of entities issuing financial instruments like Agro Bonds, Plantation Bonds, etc. (Financial Schemes) luring investors with promises of high returns but without any tangible securities leaving the investors in a lurch - SEBI instituted this Public Interest Litigation when there was no effective regulatory and statutory framework to control the mushrooming number of entities indulging in such financial schemes HELD THAT:- By orders made in this petition, the Deputy Commissioner of Police was appointed as the Investigating Officer and directed to file reports in sealed covers at the final hea....... + More

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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Case Laws - FEMA

• 2024 (11) TMI 835
  Recognition and enforcement of a foreign award - Common petition filed by the Petitioner seeking recognition/enforcement and execution - HELD THAT:- In the wake of the decision in the case of Vedanta Limited [ 2020 (9) TMI 1178 - SUPREME COURT ] where it is clearly pronounced that there is no need to take two separate proceedings i.e. one for deciding the enforceability (recognition) of the award as a deemed decree and then separate proceeding for execution of the deemed decree thereafter, and it is open for the award holder to apply for recognition and execution of a foreign award by common petition. In stage 1, the Court would decide the e....... + More

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• 2024 (11) TMI 834
  Penalty for the contravention of Section 3(b) of FEMA, 1999 - under-invoicing to evade customs duty - significance of a statement recorded under Customs Act as relied upon - goods worth Rs. 6,01,82,311 imported as against the declared value of Rs. 1,71,62,087 against 26 Bills of Entry and had paid the differential amount in cash to the supplier in Japan in Indian Rupees in contravention of Sec. 3(b) of FEMA, 1999 Applicability of Customs Act on FEMA Issues - Reliance placed by the respondent Directorate on the proceedings conducted by the DRI under the Customs Act, 1999 - as contended that the intent and purpose of the two enactments are vas....... + More

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• 2024 (11) TMI 799
  Condonation of a delay of 138 days in filing an appeal - Order of Adjudicating Authority dropping the charges framed against the notice being Show Cause Notice issued u/s 6 (3)(a) and (h) of FEMA - HELD THAT:- Having heard the learned advocates for the respective parties and having perused the averments made in the application as well as the decisions relied upon, reading the proviso to Section 35 of the FEMA Act and in view of the judgment of the Hon ble Supreme Court in the case of Singh Enterprises [ 2007 (12) TMI 11 - SUPREME COURT] , this Court would have no jurisdiction to condone the delay in excess of 60 days . As can be noticed from....... + More

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• 2024 (11) TMI 798
  Failure to utilize the foreign exchange for the purpose for which it was acquired - Contravention for acquisition of foreign exchange and for remittance of the same through various Banks in Mumbai to their overseas suppliers for import of goods but failed to bring any goods into India - It was without any general or special permission of the Reserve Bank of India (RBI). - whether there was negligence on the part of the appellants/banks for opening of the LCs and remittance of the foreign exchange despite non-submission of bills of entry and reminders and a report to the RBI? HELD THAT:- The facts available on record shows receipt of the fore....... + More

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• 2024 (11) TMI 797
  Penalty on directors for contravening Export regulations under FEMA - non-realization of export proceeds - no documentary evidence in support of their contention of having made efforts to realize the export proceeds - Tribunal disposed of the applications for waiver of the pre-deposit of the penalty amounts with direction to deposit 10% of the amount of penalty imposed against each of them with Bank Guarantee for rest of the ninety per cent of the penalty within 30 days of the receipt of the Order - on legal advice they withdrew their suits before the Mumbai High Court and fresh legal suits were filed in the High Court of Justice, London. HE....... + More

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• 2024 (11) TMI 796
  Penalty imposed under FEMA - contravention on the part of the Respondent company was the non-compliance to the provisions of Paragraph 9(1)(B) of the Schedule 1 to FEMA Regulations, 2000 - HELD THAT:- Reading of Section 13 of FEMA,1999 which is a Section under which penalty is imposed for contravention of any of the provisions of the Act or any Rule, Regulation, Notification, Direction, Order or any condition subject to which an authorization is issued by the RBI makes it obvious that the language of the Section does not require intention for penalizing of contravention. On reading of Section 13 (1) FEMA, 1999, it is also obvious that the ma....... + More

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• 2024 (11) TMI 795
  Condonation of delay in filing appeal under FEMA - allegation against the Respondent No.1 was regarding his support to the accused involved in Bombay Blast Case and for which a case was registered under TADA - case for contravention of Section 9(1) (b) and (d) of Foreign Exchange Regulation Act, 1973 - prayer is made to dismiss the appeal filed beyond the period of limitation without proper explanation of delay of more than 800 days. HELD THAT:- In the instant case, the appellant Directorate have failed to show that there was receipt of payment from any person resident outside India and that Tiger Memon was resident out of India or for that ....... + More

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• 2024 (11) TMI 476
  Ex post facto approval granted to the respondent for foreign investment - order passed by a public authority - investment in a new company, alleging it violated the FDI policy - ex post facto approval can be given to the proposal of the respondent no. 5 subject to conditions and compounding by the Reserve Bank of India. HELD THAT:- In the present case a committee was constituted vide letter dated 16.02.2010 issued by DEA then the petitioners and the respondent no. 5 were called to present their respective case before committee. As further stated that once the committee gave its report then no need was felt to call the parties again before FI....... + More

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

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Case Laws - Service Tax

• 2024 (12) TMI 14
  Service Tax on Technical Testing and Analysis Service has been paid by the service recipient under Reverse Charge Mechanism-RCM - as alleged such demand is not tenable because testing of mint samples has not been considered under RCM u/s 68 (2) of the Finance Act, 1994 and in Rule 2 (1) (d) of Service Tax Rules, 1994 or in the relevant Notification issued by the Government from time to time and the statutory liability of service provider cannot be shifted on service recipient by mutual agreement until and unless the provisions of law allow doing so - HELD THAT:- It is not disputed that the service recipient namely, M/s. MCX Sohan Lal Commodi....... + More

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• 2024 (12) TMI 13
  Demand of service tax - Manpower Recruitment or Supply (MRS) - Amounts reimbursable from DT towards ESI PF/Uniform /Tea expenses - HELD THAT:- We find that the Appellant is getting several expenses reimbursed which are in the nature of ESI/PF Charges, Uniform expenses, tea expenses and the said reimbursements are akin to the issues decided in the Apex Court s judgement Intercontinental Consultant Technocrats [ 2018 (3) TMI 357 - SUPREME COURT] since the Appellants had collected ESI and PF charges which are indicated separately in the invoices as reimbursements from customer (DT) no abatement on statutory levy like ESI/PF could be extended as....... + More

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• 2024 (12) TMI 12
  Classification of services - Services falling within the definition of mining services or Site formation and clearance, excavation and earthmoving and demolition - scope of section 65(105)(zzzy) of the Finance Act, 1994, which was introduced on 01.06.2007 - HELD THAT:- The activities undertaken by the appellant amounted to mining activity ipso facto. Following the decision of Doypack Systems P Ltd [ 1988 (2) TMI 61 - SUPREME COURT] we also find that the activity relates to the mining of lignite which is mining of mineral. Accordingly, the services provided by the appellant are falling in the scope of clause (zzzy) of sub-section (105) of sec....... + More

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• 2024 (12) TMI 11
  Demand of Service Tax on Amount retained through forfeiture of earnest money/security deposits of contractors - Declared Service - consideration for tolerating the act of poor performance by service providers /contractors - Applicability of section 66E(e) of the Finance Act, 1994 - HELD THAT:-From the perusal of these decisions it becomes abundantly clear that the issue of considering a forfeited amount as an amount of consideration towards declared services stands already settled in favour of the assessee. The same is already held to not to be the consideration towards rendering declared service defined u/s 66E(e) of the Finance Act, 1944. ....... + More

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• 2024 (11) TMI 1349
  Validity under the Voluntary Compliance Encouragement Scheme (hereafter VCES) - SCN Issued to the taxpayer alleging wrongful availing of cenvat credit in regard to the service tax paid on medical insurance services provided to the taxpayer s employees during the period from 2007-08 to 2011-12 - whether the taxpayer was ineligible to furnish a declaration under VCES in terms of Section 106 (1) of the 2013 Act on account of the audit report dated 22.09.2010 and the SCN? HELD THAT:- The question is not whether any exercise for determining the service tax dues had been conducted or whether an ascertainable quantum of outstanding service tax had ....... + More

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• 2024 (11) TMI 1348
  Receipts pertain to export of services or not? - Demand by deviating the basis issue as to whether the receipts pertain to export of services or not - HELD THAT:- Original Authority accepted the activity undertaken by the appellant as export of service and dropped the proceedings by considering all the evidences on record. As find that on appeal filed by the Revenue, Commissioner (Appeals) without considering the reasons on the basis of which the Original Authority has dropped the proceedings, proceeded to confirm the demand on the basis of irrelevant discrepancies which was not the issue for determination especially when the Original Author....... + More

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• 2024 (11) TMI 1347
  Demand of service tax under the head of Mandap Keeper Services - invoking extended period of limitation - HELD THAT:- As the appellant is a statutory body and no individual would gain from avoiding or evading tax. In these circumstances, we concur with the aforesaid decision to hold that there cannot be any intention to evade payment of duty and therefore, invocation of extended period of limitation cannot be sustained. The appellants can only be liable for the period within the period of limitation. Liability of tax for the period post 01.07.2012 - Taxability of services provided by a government authority under the negative list post 01.07........ + More

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• 2024 (11) TMI 1346
  Demand of Service Tax and imposition of penalties - appellant conducts Cricket Matches in International Level, National Level and State Level at different places in Vadodara region - service provider/service receiver relationship between the appellant and BCCI for the purpose of levying service tax appellant was receiving subsidies/assistance from BCCI from time to time. The appellant had also received certain capital equipment from BCCI. Under the mistaken belief that the capital equipment is additional subsidy/assistance from BCCI, the appellant paid service tax thereon. Later on, the BCCI informed that them the said capital received is pa....... + More

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• 2024 (11) TMI 1345
  Delay passing adjudication order - Short payment of the differential service tax - discharging service tax liability on construction services after taking 67% abatement in terms of Notification No. 01/2006-ST dated 01.03.2006 - HELD THAT:- The period of dispute 2008-09 to 2010-11 and show cause notice was issued on 16.10.2014 whereas the Order-in-Original was passed on 22.03.2021 approximately after the expiry of seven years and there has been no correspondence from the department at all for a period of seven years; the department has not been able to give any cogent reason for such a delay in adjudication; the delay in adjudication has resu....... + More

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• 2024 (11) TMI 1344
  Classification of services - whether the works undertaken by the appellant are original works or completion and finishing services ? Claim of abatement as per the Notification No.11/2014-S.T., dated 11-7-2014 during the relevant period - HELD THAT:- To invoke the proviso to Section 73 of the Finance Act, 1994, one of the ingredients such as fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has to be established. In the instant case, there is nothing on record to establish that the appellant had suppres....... + More

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• 2024 (11) TMI 1343
  Demand of service tax on the price at which the appellant had sold the coal rejects - HELD THAT:- Demand is not sustainable because service tax is not a tax on the sale of goods. If the appellant had received some coal rejects, for instance, and an amount of Rs. 100 is deducted from the service charges by the client towards these coal rejects, service tax has to be paid without this deduction of Rs. 100/- from service charges. The appellant did so. Now, if the appellant subsequently sells this coal rejects either as such or after mixing it with some other coal and sells them for Rs. 150, this amount is the value of coal the rejects sold by t....... + More

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• 2024 (11) TMI 1285
  Taxability of service tax on transporting goods by road itself - appellant has employed GTAs for the purpose, but in those cases the appellant has discharged the service tax liability under Reverse Charge Mechanism (RCM) and has taken credit of such service tax paid in their Cenvat account at appropriate percentage in terms of Rule 6 (3) of Cenvat Credit Rules, 2004 - HELD THAT:- Since admittedly the appellant is neither the GTA, nor the Courier agency hence, the activity of transportation of goods by road by them is well covered under the aforesaid provision. The amount in question is an amount towards facilitation of freight and insurance ....... + More

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• 2024 (11) TMI 1284
  Service tax on amounts received by an employee from the employer on premature termination of contract of employment - HELD THAT:- We find that the issue is no longer res integra in view of the decision of GE T D INDIA LIMITED (FORMERLY ALSTOM T D INDIA LIMITED) VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE [ 2020 (1) TMI 1096 - MADRAS HIGH COURT] as followed in M/S HCL LEARNING LIMITED [ 2019 (12) TMI 558 - CESTAT ALLAHABAD] wherein held the employer cannot be said to have rendered any service per se much less a taxable service and has merely facilitated the exit of the employee upon imposition of a cost upon him for the sudden exit. The defi....... + More

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• 2024 (11) TMI 1283
  Demand of service tax by invoking extended period of limitation - technical knowhow falls under the category of Consulting Engineer Service and is liable to service tax under reverse charge mechanism, invoking section 66A of the Finance Act, 1994 - HELD THAT:- We find that the impugned order has not examined the aspect relating to payment of duty and availment of credit thereon. The impugned order takes note of service tax paid by the appellant and also the fact that the credit of same has been availed as can be seen from impugned order. Therefore, it is apparent that there is no dispute that whatever service tax was to be paid by the respon....... + More

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• 2024 (11) TMI 1282
  Classification of services received from overseas service providers - Determination of place of provision of such services - services received by the respondent from the overseas service providers is Online Information and Database access or retrieval services OR Market Research Services HELD THAT:- The activities done by the Foreign Service provider are merely in the nature of the data collection activities with no research or interpretation of the data. The raw data collected in terms of questionnaire designed by the respondent is supplied back to the respondent in the raw form. Research on the said data is done by the respondent. It is li....... + More

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• 2024 (11) TMI 1281
  Service tax on amounts received by the Local Cable Operators (LCOs) - invocation of extended period of limitation - proof of suppression of material on the part of the appellant HELD THAT:- Department has not been able to establish the suppression of material on the part of the appellant who is only a small service provider. Further, the appellant has filed all the relevant documents and has not concealed any information from the department so as to invoke the extended period of limitation. It has been consistently held by the Courts in various decisions that in order to invoke extended period, there must be some positive act on the part of ....... + More

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• 2024 (11) TMI 1280
  Classification of services - works contract services or Construction of Residential Complex service - valuation of services - values of sale of land and construction of framework were clubbed and abatement of 70% was deducted in order to arrive at the value of taxable services - clause (b) of section 66E of the Finance Act, 1994 - liability of service tax on the amount retained by the appellant upon cancellation of the booking by the buyer on which tax was paid earlier as part of works contract services. HELD THAT:- The revenue has not disputed that the appellant has used own goods while carrying out the construction activities. It is also f....... + More

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• 2024 (11) TMI 1233
  Dismissal of appeal as filed belatedly and beyond the time permitted by the statute - petitioner vehemently submits that this is a case where certain events peculiar to the petitioner have to be noticed while this Court considers the question as to whether the appeal filed by the petitioner must be restored to file for the purposes of disposal on the merits of the matter - HELD THAT:- As in normal circumstances, this Court will not restore an appeal which has been rejected on the ground that it was filed beyond the period of limitation if it has found that such rejection was justified by the statutory provisions governing the filing of such ....... + More

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• 2024 (11) TMI 1232
  Refund of pre-deposit - dispute over inclusion of certain reimbursement expenses such as freight, stationery, printing charges, telephone charges, asset hire, courier, insurance and other taxes while providing Clearing and Forwarding agency services. HELD THAT:- Revenue has accepted that once the appeal is decided in favour of the assessee, he shall be entitled to refund of the amount deposited along with interest at the prescribed rate from the date of making the deposit to the date of refund, irrespective whether the order of the Appellate Authority is proposed to be challenged by the Department or not. The amount of 10% of the tax amount ....... + More

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• 2024 (11) TMI 1231
  Demand of service tax was confirmed under Cargo Handling Service along with interest and penalty - whether the services provided by the appellant to WCL are taxable under the category of Cargo Handling Service or Transportation of Goods by road service ? - HELD THAT:- The primary nature of work awarded to the appellant was transportation as is evident from the valuation of the work, which is attributable mainly to the transportation activities and the very limited portion is towards mechanical loading of coal. The work orders of WCL shows the combined rate for loading and transportation of coal as well as work orders for only loading coal in....... + More

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Case Laws - Central Excise

• 2024 (12) TMI 10
  Clandestine manufacture and removal - alleged fraudulent availment of cenvat credit on the strength of invoices issued by their Unit-II located at Coimbatore without actually receiving the goods - levy of penalty on the appellants - HELD THAT:- The appellant s factory was visited on 14.09.2005 on the basis of intelligence about indulgence in clandestine manufacture and clearance of electrical stampings and parts of motors and also fraudulent availment of cenvat credit on invoices without receiving the inputs. Voluminous records have been seized during the search operation and subsequently statements of various persons including the employees....... + More

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• 2024 (12) TMI 9
  Admissibility of CENVAT Credit availed on inputs at B-59 transferred to Unit B-165 - credit on inputs used in the final product not amounting to manufacture - credit on rejected goods and procedural discrepancies. Admissibility of the credit availed on inputs received in their factory and later transferred to their other Unit B-165 having separate Central Excise registration - HELD THAT:- The appellant had accounted for the receipt of the inputs and its transfer to their other Unit at B-165 under proper challans which have been accounted there in their records, later consumed in the manufacture of finished goods cleared for export on payment....... + More

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• 2024 (12) TMI 8
  Liability to pay Excise duty on the scrap/waste generated during the job work - whether the appellant who is the principal manufacturer and has sent these raw materials to the job workers for conversion in terms of Notification No. 214/86-CE dated 25.03.1986, is required to pay Central Excise duty in respect of waste and scrap generated at the job workers factories and cleared by the job workers without payment of duty for the disputed period? - HELD THAT:- The Tribunal Chennai vide its Final Order No. 41199/2024 dated 10.09.2024 [ 2024 (9) TMI 1245 - CESTAT CHENNAI] has decided the issue in favour of the assessee. The Impugned Order dated 1....... + More

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• 2024 (12) TMI 7
  Default in timely payment of duty on goods cleared - Contravention of Rule 8(3A) of the Central Excise Rules, 2002 (Rules) - extended period of limitation - penalty - period from April 2011 to July 2011 and August 2011 to December 2011 - doctrine of merger - HELD THAT:- The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultravires to the Main Act. The Hon ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [ 2014 (12) TMI 585 - GUJARAT HIGH CO....... + More

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• 2024 (12) TMI 6
  CENVAT credit - denial of credit paid by sender units, based on the allegation that sender units inflated the value of Soap Noodles stock transferred to the appellants, as compared to the cost of such materials debited by each of the sender units, and the appellants took excess credit - recovery alongwith interest and penalty - whether appellant is entitled to take Cenvat credit of duty paid on inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 or not? - HELD THAT:- Admittedly, the appellant has paid duty on the invoices issued by the sender unit of 115% / 110% of the cost of production in terms of Rule 8 of Valuation Rules, therefore, t....... + More

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• 2024 (12) TMI 5
  CENVAT Credit - input services - Air Travel Agent service - Architect service - Business Support Service - Clearing Forwarding service - Club Membership service - Telephone service - GTA service - Housekeeping service - Design Development service - Chartered Accountant Services - Sponsorship services - Outdoor Catering services - denial of credit on the ground that the disputed services are not in conformity with the definition of input service as per Rule 2(l) of the CENVAT Credit Rules, 2004 - period of dispute involved in the present case is from January, 2005 to January, 2014 - HELD THAT:- The case of the appellants is covered under both....... + More

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• 2024 (12) TMI 2
  Valuation of goods transferred to sister units - clinkers transferred by the appellant to their sister concern - to be valued under Rule 4 or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000? - Revenue Neutrality - Extended period of limitation - suppression of facts or not. HELD THAT:- This Tribunal in appellant s own case for their own unit for the period from March 2011 to November 2013 held that Rule 4 read with Rule 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 be adopted following the judgment of the Larger Bench of the Tribunal in the case of Is....... + More

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• 2024 (11) TMI 1342
  Levy of penalties - wrong availment of CENVAT credit based on fraudulent invoices without receiving goods by the assessee - HELD THAT:- Evidently, Rule 26(2) of the Central Excise Rules provides for imposing penalty on any person who either issues an excise duty invoice without delivery of goods specified therein or abets in making any such an invoice or any other document or abets in making any such document on the basis of which a user of the invoice or the document is likely to take or has taken ineligible benefit under the Act or Rules. In this case, the allegation in the SCN as well as affirmation in the impugned order is that the asses....... + More

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• 2024 (11) TMI 1341
  Liability of Appellant to pay Central Excise duty on pre-budgeted stock of branded garments lying in its godown after it has been made taxable by N/N. 12/2011 dated 01.03.2011 - HELD THAT:- The brand names were put by the job-workers and not by the Appellant on the garments manufactured and cleared at the job workers end. For excise taxable events it is manufacturing itself that would determine the taxability but duty can be levied and collected at a later stage for convenience of administration and removal can be made taxable event in terms of Rule -9A of Central Excise Rules, 1944. It would be worthwhile to mention that Rule 9-A that was m....... + More

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• 2024 (11) TMI 1340
  Benefit of N/N. 33/2022-CE dated 09.07.2012 - liability to pay Education Cess and Secondary Higher Education Cess - recovery alongwith interest and penalty - HELD THAT:- The issue of liability to pay Education Cess as well as Secondary Higher Education Cess in the facts of the present case involves interpretation of statute which issue is sub-judice, before the Hon ble Apex Court. When such is the case, no mens rea could be attributed to the Taxpayer, especially since the appellant is claimed to have remitted the disputed cess of Rs.88,494/- along with applicable interest thereon vide Challan No. 21 dated 27.10.2014 and hence, there is no sc....... + More

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• 2024 (11) TMI 1339
  Default in payment of duty beyond 30 days from the due dates - bar to utilize the Cenvat Credit - violation of Rule 8(3A) of CCR - Extended period of limitation - penalty - period from January 2011 to March 2014 - HELD THAT:- The issue as to whether the Assessee can utilise the CENVAT credit toward payment of duty when in default is no more res integra and many judicial authorities have held that the provision of Rule 8(3A) of Central Excise Rules, 2002 as ultra vires to the Main Act. The Hon ble Gujarat High Court in the case of M/s. Indsur Global Ltd. Vs. UOI [ 2014 (12) TMI 585 - GUJARAT HIGH COURT ] struck down the condition in Rule 8(3A....... + More

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• 2024 (11) TMI 1338
  Levy of central excise duty - debonding of a 100% EOU unit to DTA, on finished and semi-finished goods, which are either exported on bond or cleared in domestic market on payment of excise duty, during 18.12.2012 (cutoff date) to 15.02.2013 (final exit order) - HELD THAT:- The issue of non-payment of central excise duty on final goods on debonding is settled in favour of appellant. Also, prima facie, the other issue that no duty is payable on semi-finished goods is settled in favour of appellant in terms of decisions relied upon in paragraph 2 above. However, it is seen that although the Learned Commissioner took verification report dated 20....... + More

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• 2024 (11) TMI 1279
  Maintainability of appeal - monetary limit invloved in the appeal - Activity amounting to manufacture or not - HELD THAT:- In terms of National Litigation Policy, this appeal is required to be dismissed on this count alone. The issue involved in this case is as to whether activity undertaken by the appellant amounts to manufacture or not. In case it amounts to manufacture, the appellant would be required to pay Excise Duty of Rs.8,57,549/- as confirmed by the Adjudicating Authority. It is found that the Commissioner (Appeals) has given a very detailed findings and has made a considered decision to allow the appeal filed by the respondent. Th....... + More

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• 2024 (11) TMI 1278
  Valuation of captively consumed goods - valuation of goods is required to be determined on the basis of cost of production, as prescribed by the Institute of Cost Works Accountants of India in the Cost Accounting Standard-4 (CAS-4), in accordance with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Section 4 (1)(b) of theCentral Excise Act, 1944 or not - denial of CENVAT credit to recipient sister units - penalty under Section 11AC of the Central Excise Act, 1944 - HELD THAT:- It is an admitted fact on record that the appellants have themselves computed the differential duty liability ....... + More

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• 2024 (11) TMI 1220
  Clandestine manufacture and removal - substantial electricity consumption - no other corroborative evidences - Revenue faied to rebut the claims made by the appellant - penalty imposed on the Director Mahabir Prasad Rungta - HELD THAT:- Since the search had commenced suddenly without any notice, there would be no chance for the appellant to hide these factual evidences. But no evidence towards stock of raw materials, consumables, in-process stock or finished goods stocks have been found or recorded in the Panchanama. The panchnama nowhere indicates anything to suggest that manufacturing activities were noticed by the investigating team at th....... + More

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• 2024 (11) TMI 1219
  Denial of CENVAT credit - input services - godown rent - loading, unloading, freight, painting and other miscellaneous expenses - HELD THAT:- The present demand is a statement of demand subsequent to a show cause notice dated 04.10.2016. It is noted that the said show cause notice dated 04.10.2016 culminated in M/S. WHEELS INDIA LTD. VERSUS COMMISSIONER OF CGST CE, PUNE-I [ 2022 (9) TMI 735 - CESTAT MUMBAI] . On going through the said final order, it is noted that cenvat credit availed by the appellant on input services such as godown rent, unloading, loading etc. were held to be eligible input services for the appellant and cenvat credit wa....... + More

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• 2024 (11) TMI 1218
  Conversion of 100% EOU into DTA - denial of CENVAT Credit - non-registration of debonded EOU - denial of credit u/r 10 of CENVAT Credit Rules, 2004 - denial of transfer of PLA balance of debonded EOU to CENVAT credit of DTA. Denial of CENVAT credit of Rs. 10,77,05,805/- on allegation of non-registration of debonded EOU - HELD THAT:- The appellant provided all possible disclosures in their application. Pursuant to this letter, the department issued amended central excise registration certificate on 11-03-2013. In this background, when the appellant made all disclosures in their application and amended central excise registration was issued, w....... + More

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• 2024 (11) TMI 1181
  Maintainability of appeal - monetary limit fixed by the Board for filing appeal - HELD THAT:- In view of the Circular dated 2-11-2023 issued by the Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes Customs fixing the monetary limit upto Rs.2 Crore so far as filing the appeal before the Supreme Court is concerned, these appeals are not pressed. The appeals are accordingly disposed of as not pressed, in view of the monetary limit fixed by the Board. However, the questions of law, if any, are kept open.

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• 2024 (11) TMI 1180
  Refund of unutilized CENVAT credit under Rule 5 of CCR 2004 - rejection on the ground that physical export is essential for a refund under Rule 5 ibid and the warehousing procedure did not confer any export benefit to the DTA supplier - procedural infirmities viz. the copy of ARE1 of the export warehouse has not been marked after endorsement by the customs to the range officer in charge of the factory - HELD THAT:- The SCN has pointed to certain procedural defects and the fact that the appellant appears to have sold the goods domestically to the export warehouse from where the ultimate exports were made. Thus as far as the appellant is conce....... + More

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• 2024 (11) TMI 1179
  Application of exemption under exemption N/N. 12/2013-CE dated 17.03.2012 at Sr. No. 332 read with List 8 - paints applied/coated on wind mills for giving protection to non-conventional energy device - HELD THAT:- The parts and component of the main unit namely wind operated electricity generator are those articles which along with others would make up the whole and those were constituents or components or a member of the original unit/goods but paint is something which is applied externally on the whole unit or goods to provide it protection, beauty and perfection. It would be like skin of an organic living being and therefore in the inorga....... + More

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Case Laws - Vat / CST

• 2024 (12) TMI 4
  Rejection of prayer of the petitioners for representation by their advocate - challenge to quash CR Case - Prosecution proceedings against the Partners of the Firm for evasion of Tax - HELD THAT:- From the record of proceeding, it is seen that having registered the C.R. case, a summon has already been issued to the petitioner and the petitioner had entered appearance through the learned counsel before the learned trial Court below. Though it is contended in this petition, the prayer for representation of the petitioner is disallowed, the order sheets annexed along with this petition donot disclose anything to that effect rather the order she....... + More

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• 2024 (11) TMI 1337
  Challenge to action of the respondents in freezing his saving bank accounts with the purpose to recover the VAT dues of M/s East Bourne World Cuisine Private Limited, where the petitioner was a former director - HELD THAT:- The company has itself filed an appeal before the appellate authority, which is still pending. It is also noticed that the company is functional and the petitioner is no more a director of the said company. In the circumstances, there was no occasion for the respondent to attach the bank accounts of the petitioner for recovery of its dues as against the concerned company. A perusal of Section 83 (3) of Companies Act also ....... + More

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• 2024 (11) TMI 1336
  Rectification application to recall earlier order - error apparent in the original order or not - HELD THAT:- Mistake of law is an interpretation of law which a particular Court may hold. However, merely because a different interpretation can be taken of the provisions of law, rectification application cannot be allowed to be entertained. There has been a gross abuse of the process of the Court in passing the order dated 24.12.2007, and the same therefore, cannot be allowed to be sustained. The same is accordingly set aside. The VAT appeal is allowed.

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• 2024 (11) TMI 1277
  Imposition of condition relating to 'C' form over and above what has been contained in the Notification - Whether the Notification under Section 8(5) would run in parimeteria with the rates of tax stipulated in the Schedule and whether the conditions stipulated in Section 8(4) have to be read into the Notification itself? - HELD THAT:- Reference may be made to the decision of the Jharkhand High Court in TATA MOTORS LIMITED VERSUS STATE OF JHARKHAND AND OTHERS [ 2012 (9) TMI 911 - JHARKHAND HIGH COURT] . In that case, the benefit of reduced rate of tax per a Notification issued under Section 8(5) of the CST Act had been refused on the....... + More

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• 2024 (11) TMI 1276
  Assessment of turnover under the Tamil Nadu General Sales Tax Act, 1959 for the periods 1996-97, 1997-98, and 1999-00 - inclusion of freight charges in the sale price of cement - HELD THAT:- None of the orders of assessment conduct an examination of the nature envisaged by the AAC in remand order dated 31.08.2000. No doubt, the assessing authority has attempted a cursory comparison of the transactions pre and post 05.10.1996 in the order for the period 1996 97, noting that the sale price was Rs. 84,975/- for 10 tonnes of white cement vide invoices upto 5.10.96 and Rs. 85,670/- for 10 tonnes vide invoice dated 26.11.1996. It cannot be underst....... + More

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• 2024 (11) TMI 1076
  Imposition of penalty u/s 22(5) of the TNVAT Act, 2006 - petitioner would submit that the petitioner has paid the tax immediately after the inspection for the assessment years and therefore, there was no question of any best judgment assessment involved in the present case - HELD THAT:- The petitioner cannot escape from the penal consequence under Section 22(5) of the TNVAT Act, 2006 merely because the tax was paid after inspection and before the assessment order dated 29.12.2017 was passed under Section 22(5) of the TNVAT Act, 2006. The question of filing a revised return on 31.07.2016 was also not available in view of the Rule 7(9) of the ....... + More

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• 2024 (11) TMI 1039
  Levy of purchase tax under Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 during the Assessment Year 1994-1995 - defective parts that were collected from the customers by providing maintenance services to the customers / clients on behalf of the head office - HELD THAT:- A reading of sub-section (1) to Section 7-A of the Act makes it clear that the question of subjecting the respondent to purchase tax would arise only if there was a purchase of defective spare parts by the respondent from the customers / clients, question of involving Section 7-A of the TNGST Act, 1959 will apply. In the present case, it cannot be said that the re....... + More

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• 2024 (11) TMI 981
  Allowing the claim of second sale exemption contrary to established facts that the so-called sellers were either non-existent or had not handled the goods - Deletion of consequential penalty under Section 12(5)(iii). Whether the Tribunal was legally right in allowing the claim of second sale exemption despite the sellers being non-existent or not having handled the goods? - HELD THAT:- When the burden was on the dealer to prove the factum of second sale, the respondent had not discharged the burden of proving the actual first sale, for him to successfully claim the exemption on the ground of second sale. The Tribunal had erroneously shifted ....... + More

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• 2024 (11) TMI 711
  Challenge to order of the Sales Tax Appellate Tribunal (STAT/Tribunal) - rate of tax - quantification of penalty under Section 23 of TNGST Act - HELD THAT:- On the quantification itself, it is seen that it is an admitted position that the Circular is clarificatory and retrospective in nature. Thus, though it is dated 05.01.200,1 it would apply to all pending assessments, including the present assessment relating to the period 1998-99. The reason for issuance of the Circular appears to an incorrect thinking on the part of the assessing officers that the penalty under Section 23 of the Act must mandatorily of 150% only. What the Commissioner h....... + More

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• 2024 (11) TMI 662
  Dismissal of appeal for want of compliance of pre-deposit order passed by it without considering the merits of the assessee s case on the issue of pre-deposit - failure to appreciate that in view of the approval of input tax credit by the First Appellate Authority the entire tax demand become otiose - insistence for further payment towards pre-deposit and grant of any stay against recovery - HELD THAT:- It appears that the Tribunal ought to have taken into consideration the appellate order whereby, the brought forward towards Input Tax Credit of Rs. 1,12,01,251/- was permitted for the period under consideration i.e. 2014-15 and the appellant....... + More

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• 2024 (11) TMI 606
  Levy of luxury tax under Kerala Building Tax Act, 1975 - transfer of ownership of a portion of a residential building - HELD THAT:- The petitioner has not made out any case for grant of relief. It is not disputed before me that the residential building of the petitioner as it originally stood had an area in excess of the limits specified in Section 5A of the 1975 Act, and thus it was liable to the levy of luxury tax under that provision. The building was also duly assessed to luxury tax. According to the petitioner, the petitioner has also discharged the liability towards luxury tax, and in the year 2018 he transferred/settled a portion of t....... + More

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• 2024 (11) TMI 543
  Validity of the notices issued under Sections 84 and 27(1)(a) of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act, 2006) - time limitation for revising assessment orders - HELD THAT:- As far as the limitation is concerned, it is sufficient if a notice is issued for revising the assessment in time. This Court earlier had an occasion to deal with the case of TVL. VICTUS DYEINGS VERSUS THE ASSISTANT COMMISSIONER (ST) [ 2019 (8) TMI 823 - MADRAS HIGH COURT] in the context of Section 27 of the TNVAT Act, 2006., wherein the dispute related to the Assessment Years 2007-08 to 2010-2011 respectively - As per proviso to Section 22(2) of the TNVAT A....... + More

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• 2024 (11) TMI 396
  Condonation of delay - revisions were beyond the period of limitation - non-submission of Form C and Form F - HELD THAT:- It is nobody's case that the respondent has not submitted Form C Form F in support of its sales. The same Form F was got verified from the Assessing Authority by the order of the first appellate authority, but still, the first appellate authority, instead of deciding the issue, has remanded the matter. Feeling aggrieved by the said order, cross-appeals were preferred, but the Tribunal, after detailed discussion and verification of the records, recorded a finding of fact in favour of the respondent, which has not been ....... + More

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• 2024 (11) TMI 395
  Interpretation of statute - Section 18 (A) (5) of the CST Act - pre-deposit for admission of appeal and stay of recovery - HELD THAT:- It is found that the Appellate Authority was examining the case on an application under Section 18 (A) (5) of the CST Act, as is apparent from the first para of the order and proceeded to frame a question of law for the purpose of admission. But while passing the order, it has made a stay of recovery, subject to condition of depositing 10% of the tax due. The language may be a little misleading, but the very purpose is of depositing 10% of the tax due, as a pre-condition for admission in stay, which is in con....... + More

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• 2024 (11) TMI 342
  Challenge to orders - Wrongful typing of prayer - no order passed by any authority - HELD THAT:- It is not in dispute that the petitioner did not deposit any tax with the authorities of Himachal Pradesh despite the fact that it had been running its buses within its territory and thus, in this manner, it deprived the State of Himachal Pradesh of its legitimate amount of tax. Once that be so, obviously, it would be liable to pay interest, for it is more than settled that a person or authority deprived of use of money to which one is legitimately entitled to has a right to be compensated for the deprivation, which may be called interest, compen....... + More

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• 2024 (11) TMI 341
  Challenge to Assessment orders passed under Section 27 of the TNVAT Act, 2006 - allegations against the petitioner was that the petitioner had availed input tax credit under Section 19 of the TNVAT Act, 2006 on the dealers whose registrations were cancelled - HELD THAT:- Having perused the notices that preceded the impugned order and the reply of the petitioner and the impugned orders, this is a fit case for quashing the impugned order and remitting the case back to the respondent to pass a fresh order on merits after furnishing copies of the orders cancelling the registration certificate of the respective dealers. This exercise may be carri....... + More

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• 2024 (11) TMI 284
  Maintainability of appeal under Delhi Value Added Tax Act, 2004 - obligation to approach the Appellate Tribunal for drawing up a statement of case for the consideration of this Court and that the appeals which have come to be directly instituted would not be maintainable - HELD THAT:- As is evident from a reading of Section 45 of the DST Act, a person desirous of challenging an order passed by the Appellate Tribunal, was required to submit a request to that Tribunal to refer a question of law arising out of such order for the consideration of the High Court. In terms of Section 45 (2), if the Appellate Tribunal were to refuse to state the ca....... + More

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• 2024 (11) TMI 283
  Challenge to reassessment order - disallowance of ITC - bone of contention in the case at hand is non production of books of accounts for the assessment period of 2010-11 - appeal is dismissed solely on the score that the appeal is preferred beyond period of limitation - HELD THAT:- The original order is passed without hearing the petitioner, and is in violation of principles of natural justice. In that light, the petitioner preferring an appeal after six years cannot be pointed against him, for the reason that original order was an ex parte order. On the sole ground that the original order passed by Assistant Commissioner was without hearin....... + More

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• 2024 (11) TMI 282
  Levy of Entry tax - benefit of the exemption notification dated 31.03.2000 - applicability of notification dated 18.12.2010 - notification dated 31.03.2000 was superseded by the notification dated 18.12.2010 or not - HELD THAT:- Under Section 11A of the KTEG Act, 1979, the State Government is entitled to exempt specified class of persons or Class of dealers or Goods or Class of goods or All or any goods or class of goods from the tax payable under the KTEG Act, 1979. A perusal of the notification dated 31.03.2000 shows that exemption was granted to dealers with effect from 01.04.2000 from payment of tax on all kinds of Wind Mills Parts and A....... + More

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• 2024 (11) TMI 199
  Jurisdiction to claim outstanding dues from petitioners regarding specific land - Priority of charge under the SARFAESI Act over the State's claim - HELD THAT:- This Court in the aforesaid decision in case of PARTNERS OF SIDDHESHWAR TAX FAB ORS. VERSUS STATE OF GUJARAT ORS. [ 2024 (7) TMI 1547 - GUJARAT HIGH COURT] has held ' Thus, the charge in respect of the property in question created for sales tax dues or VAT dues is of no avail and has no efficacy in law in view of the provisions of SARFAESI Act and the RDB Act. The property in question was sold by respondent no. 6-Bank under the provisions of SARFAESI Act and the petitioners w....... + More

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Case Laws - Indian Laws

• 2024 (12) TMI 1
  Dishonour of Cheque - application filed u/s 482 of CrPC for quashing complaint under Section 138 of NI Act - HELD THAT:- Admittedly, the petitioner has issued two numbers of post-dated Cheques bearing No. 622623 and 622624 for an amount of Rs. 93,00,000/- and Rs. 1,54,00,000/- respectively. The parties have entered into an agreement with certain stipulations/terms and conditions. The terms and conditions of the Deed of Undertaking duly executed between the petitioner and the respondent provides that the petitioner will clear the GST, amounting to Rs. 9,63,00,000/-in respect of the firm-M/s Kurung Kumey Enterprises for execution of the work. ....... + More

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• 2024 (11) TMI 1335
  Rejection of Original Application on the ground of delay and laches - applicability of time limitation - issuance of the provisional gradation list - scope of judicial review - HELD THAT:- The principle of delay and laches is to be applicable in a case where the principle of limitation is made out. The same is strictly applicable in a proceeding under Article 226 of the Constitution of India or any other litigation where the principle of limitation is not applicable. If the principle of limitation is applicable then, the case is to be considered on the basis of applicability of principle of limitation by giving go-bye to the principle of del....... + More

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• 2024 (11) TMI 1275
  Seeking grant of bail - smuggling of huge commercial quantity of heroin - recording of statements u/s 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 - existence of other corroborative evidences or not - right of Accused of speedy trial - HELD THAT:- Admittedly the record show that present Applicant and Accused No. 1 were partners in a firm dealing with clearing of the consignment. It is also claimed that Accused No.1 and the present Applicant are related with each other. In such circumstance, phone calls between Accused Nos. 1 and 2 are but natural, on personal front as well as on business transaction - The transactions which hav....... + More

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• 2024 (11) TMI 1274
  Misconduct under the Chartered Accountants Act, 1949 - removal of respondent s name from the Register of Members for a period of six months - scope of the disciplinary proceedings - HELD THAT:- The present disciplinary proceedings cannot be said to have been affected due to the absence of the complainant. Admittedly, respondent had purchased the shares in the year 1997, but denied having sold them to the complainant. Surprisingly, the signatures on the share transfer deed has been admitted by the respondent. He tried to render an explanation that an employee of the broker made him sign the blank transfer deed on the pretext that it was neede....... + More

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• 2024 (11) TMI 1173
  Seeking grant of pre-arrest bail - offences punishable under Sections 9, 39, 48 and 48A read with 51 of the Wild Life (Protection) Act, 1972 - capturing six ball pythons, a golden child retic, three striped mud turtles, an Indian star turtle, a marmoset monkey, and an iguana on a specified premises - HELD THAT:- From a cursory reading of Schedule I of the Act, it appears that the Indian star turtle does not form part of this Schedule, and the other animals are included in Appendix I to Schedule I. Under Section 51 of the Act, this violation is punishable for imprisonment for a term upto three years, a fine extended to Rs.1 lakh, or both. It ....... + More

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• 2024 (11) TMI 1172
  Termination of Agreements - specific performance of contract - Balance of Convenience - Irreparable Loss - Section 11 of the Arbitration and Conciliation Act 1996 - HELD THAT:- The scope of interference with discretionary orders of injunction by the appeal Court is quite limited. The appeal Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion is shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal agains....... + More

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• 2024 (11) TMI 1171
  Professional misconduct - scope of clause (7) of Part-1 of Second Schedule to the Act - whether, on the basis of the material available on record, the petitioner has been rightly held guilty of professional misconduct, as covered under clause (7) of Part I of the Second Schedule to the Act, and whether an order from this Court under Section 21(6) of the Act is merited? - HELD THAT:- Coordinate Bench of this Court in case of Institute of Chartered Accountants of India, New Delhi v. B.L. Khanna Anr. [ 2000 (9) TMI 1094 - DELHI HIGH COURT ], had the occasion to explain the scope of clause (7) and the meaning of gross negligence . It was held th....... + More

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• 2024 (11) TMI 1123
  Challenge to insertion of the words socialist and secular in the Preamble to the Constitution of India by the Constitution (Forty-second Amendment) Act in 1976 - retrospectivity of the insertion in 1976, resulting in falsity as the Constitution was adopted on the 26th day of November 1949 - whether word secular was deliberately eschewed by the Constituent Assembly, and the word socialist fetters and restricts the economic policy choice vesting in the elected government? HELD THAT:- The fact that the writ petitions were filed in 2020, forty-four years after the words socialist and secular became integral to the Preamble, makes the prayers par....... + More

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• 2024 (11) TMI 1111
  Power and jurisdiction to extend the period, after the expiry of the Arbitral Tribunal's mandate - Whether the application filed by the appellant under Section 29A(4) of the Arbitration and Conciliation Act, 1996 for extension of the mandate of the Arbitral Tribunal ought to have been allowed by the High Court? Whether the application for extension can be entertained if it is filed after the expiry of the Arbitral Tribunal s mandate? - HELD THAT:- When must an application under Section 29A(4) be filed - The effect of the provision is that if the arbitral award is not made within 12 months from when the pleadings are completed, extendable....... + More

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• 2024 (11) TMI 1110
  Locus standi of appellant, M.R. Ajayan, to prefer this SLP against the impugned order - proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C. or not - Correctness of de novo steps to be taken against the appellant. Whether M.R. Ajayan, appellant in SLP(Crl.)No.4887 of 2024 has the locus standi to prefer this SLP against the impugned order? - HELD THAT:- The locus of a private individual seeking the exercise of jurisdiction of this Court under Article 136 of the Constitution is no longer res integra. This Court in National Commission for Women [ 2010 (7) TMI 1131 - SUPREME COURT ] has observed that an appeal by a privat....... + More

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• 2024 (11) TMI 1075
  Seeking appointment of a sole arbitrator to adjudicate the disputes between the parties - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Since the existence of the arbitration agreement is evident from a perusal of the Agreement, there is no impediment to appointing an independent Sole Arbitrator to adjudicate the disputes between the parties as prayed for, and as mandated in terms of the judgments of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd [ 2019 (11) TMI 1154 - SUPREME COURT] , TRF Limited v. Energo Engineering Projects Ltd, [ 2017 (7) TMI 1288 - SUPREME COURT] , Bharat Broadband Netw....... + More

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• 2024 (11) TMI 980
  Jurisdiction of Micro and Small Enterprises Facilitation Council to refer the purported disputes obtaining between MRPL and Driplex for adjudication via arbitration - Validity of the No Claim Certificate issued by the supplier and its impact on the claims - Jurisdiction of Micro and Small Enterprises Facilitation Council to refer the purported disputes obtaining between MRPL and Driplex for adjudication via arbitration - HELD THAT:- In the instant matter, MRPL and Driplex entered into an agreement on 01.12.2009. Driplex submitted a memorandum to register itself as a small enterprise under the 2006 Act on 09.12.2011. Concededly, Driplex compl....... + More

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• 2024 (11) TMI 918
  Seeking quashing of the Criminal Complaint - time limitation - it is contended that the subject complaint is time barred and filed beyond the stipulated time period provided under Section 142(b) of the NI Act - when did the limitation commence for filing the complaint and whether the time spent in pursuing the first complaint filed before the court in Gurugram could be excluded? - HELD THAT:- The primary accused being the company on whose behalf the subject cheques were issued, concededly, was served with a demand notice through email on 11.03.2022 itself. There is no averment from either side that the said email bounced back. The other two ....... + More

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• 2024 (11) TMI 874
  Challenge to Award of the Labour Court - whether the appellant, as a family member of a land-loser, whose land was acquired for the Kaiga Atomic Power Project, had legally secured the job as the sonin- law, of the land-loser? - HELD THAT:- The relevant materials reflecting the marriage of the appellant with Smt. Ganga was however ignored by the Writ Court. The Court also failed to appreciate that the learned Labour Court reached the factual conclusion, after due consideration of the material evidence. Such factual finding of the Labour Court should not normally be disturbed by a Writ Court without compelling reason. Such reasons are absent. ....... + More

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• 2024 (11) TMI 788
  Grant of Anticipatory bail - Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case? - HELD THAT:- The Statement of Objects and Reasons accompanying the bill for introducing Section 438 in the CrPC indicates that the legislature felt that it was imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. The purpose be....... + More

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• 2024 (11) TMI 787
  Levy of interest to the allottees on the amount paid by them at the rate of SBI s Highest Marginal Costs of Lending Rate (MCLR) plus 2% with effect from 1 January 2018 till the date of handing over possession of subject apartments to the Respondents. Petitioner is also directed to pay costs of Rs. 10,000/- to the Respondents - whether Respondents could have filed an Appeal challenging the order of the Regulatory Authority, which according to the Appellant, is obtained on concession? - permissibility for the Appellate Tribunal to grant relief over and above the alleged concession made by Respondents before the Regulatory Authority. HELD THAT:....... + More

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• 2024 (11) TMI 710
  Review Jurisdiction - error apparent on the face of record or not - Suit for specific performance was partially decreed by directing the registration of the suit property in favour of the petitioner proportionate to the extent of the consideration paid - Doctrine of Lis pendens - HELD THAT:- The petitioner was ready and willing to perform the contract in terms of Section 16(c) of the Specific Relief Act. The first agreement to sell noted that the purchaser paid a sum of Rs.11,30,00 as earnest money. Subsequently, the petitioner paid Rs. 13,00,000 on the same day by cheque and paid another Rs. 5,00,000 by Demand Draft on 9 April 1997. If the ....... + More

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• 2024 (11) TMI 709
  Dishonour of Cheque - challenge to summoning order - appellant contended that the complaint filed was not premature, as it was within the limitation period of one month from the cause of action - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- On reading of proviso (c) to Section 138 as well as clause (b) of sub-section (1) of Section 142 of the N.I. Act, it becomes clear that the cause of action for the complainant to maintain a complaint arises when within fifteen days from the receipt of the notice issued by the complainant, there is no payment of the amount stated in the cheque which has been dishonoured. On the said ca....... + More

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• 2024 (11) TMI 708
  Dishonour of Cheque - challenge to conviction and sentence under Section 138 of the Negotiable Instrument Act - it is alleged that judgment is based on conjectures and surmises - contradictions in the Complaint and the evidence - only defence that has been put forth by the petitioner is that he had returned the loan amount in cash though, without any acknowledgment - HELD THAT:- The learned Metropolitan Magistrate as well as the learned ASJ, have rightly observed that though a plea of having return the amount in cash, has been taken but the petitioner has not able to prove it by any cogent evidence. He admittedly has no acknowledgement of re....... + More

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• 2024 (11) TMI 707
  Classification of the account of the borrower as NPA - Was the account of the borrower NPA as on the date of classification of the same? - Is the transfer of the financial asset by the State Bank of India (SBI) to the Asset Reconstruction Company (ARC) valid? - What reliefs are the parties entitled to? - HELD THAT:- The date on which the account should be considered as NPA or not for a sale under Section 5 of the Act of 2002, in the facts and circumstances of the present case, would be the date of publication of the web notice and need not be pinned to the date of NPA mentioned in the notice under Section 13 (2) - the action of SBI in puttin....... + More

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