Case Laws - Income Tax

• 2024 (4) TMI 1055
  Levy of penalty u/s 271(1)(c) - purchase of agricultural land - assessee could not explain the source of this investment and agreed for an addition - HELD THAT:- This is not a fit case of levy of penalty. The assessee has shown contractual receipts and had also produced copy of cash book, which showed that the assessee was having sufficient cash balance for the purpose of purchasing the aforesaid property. Further, the above agricultural land was also shown by the assessee in the books of accounts as well as in the Audit Report. Penalty under Section 271(1)(c) of the Act cannot be levied simply on the basis that the assessee has agreed to ad....... + More

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• 2024 (4) TMI 1054
  Penalty proceedings u/s 270A - under reporting of the income - allowability of depreciation on acquisition of mining rights treating the same as intangible asset - malafide intentions to under report the income by claiming depreciation - allowability of depreciation so claimed by the assessee was denied by the revenue on account of no activity leading to income from extraction of Iron Ore in the relevant year or in the preceding year - CIT(A) was convinced with the explanations of the assessee, observing that the disallowance of depreciation is a subject matter of debate as in the case of holding company of the assessee i.e., NMDC the mining....... + More

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• 2024 (4) TMI 1053
  Penalty proceedings u/s. 271(1)(b) - non-compliance of 3 notices u/s. 142(1) - Delay in late response as per date mentioned in notice - nowhere assessee had denied that notices were not served upon him nor there was any plausible explanation for non-compliance of notice - HELD THAT:- Although it is correct that assessee had not complied the date fixed in the notice u/s. 142(1), however, the assessee had filed all the details in response to the said show-cause notice on 24/02/2022 and also on 20/03/2022. Further, in response to show-cause notice also assessee had filed the details and also brought to his knowledge that all the transactions wh....... + More

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• 2024 (4) TMI 1052
  Validity of reopening of assessment u/s 147 - Reason to believe - as argued AO has failed in giving the exact reason for reopening the assessment and the reasons which the assessee came to the knowledge of the assessee from the assessment order are vague in nature - HELD THAT:- When asked, during hearing, the Ld. Counsel agreed and confirmed that the reasons for reopening were not asked for by the assessee during the course of either assessment proceedings or appellate proceedings. The Hon ble Supreme Court in its judgement of GKN Driveshaft (India) Ltd.[ 2002 (11) TMI 7 - SUPREME COURT] held that when a notice u/s 148 of the Income tax Act ....... + More

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• 2024 (4) TMI 1051
  Rejecting registration u/s 12A(1)(ac)(iii) - name mismatch between the certificate of registration issued by the Charity Commissioner, Vadodara and the PAN database - assessee/applicant submitted that the variation in nomenclature arises due to the English translation of the organization's name - HELD THAT:- Name of the assessee/applicant trust has not changed but in translation from Gujarati to English, words in Gujarati Bhutpurva Vidhyarthi Mandal is translated in English as Alumni Association . Instead of Bhutpurva Vidhyarthi the word Alumni is translated in English and for the word Mandal , it is translated as Association . Otherwise....... + More

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• 2024 (4) TMI 1050
  Denial of benefit u/s 115BAA of reduced rate of tax @22% - Domestic Companies - Condonation of delay in filing of Form No. 10-IC by the assessee - scope of circulars or directions amending provisions of the Act - assessee submitted that CBDT has issued Circular No. 19/2023 for condoning the delay in filing of Form No. 10-IC for Assessment Year 2021-22 as stated that delay in filing of Form No. 10-IC may be condoned, subject to fulfilling of 3 conditions for claiming the concessional rate of tax under Section 115 BAA of the Act. HELD THAT:- On going to the facts of the instant case, and the conditions as stipulated in Circular No. 19/2023 dat....... + More

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• 2024 (4) TMI 1029
  Scope of challenge to orders passed by the ITSC - Validity of exercising discretion by the ITSC in granting relief to the assessee - Granting immunity from prosecution and certain penalties - Revenue is unhappy with the findings of the ITSC on 8 points, viz., income-Revised percentage of profit, cash loans, bogus purchase from Dwish Enterprise, disallowance under Section 14A, NCDs / shares issued to Cyprus and Mauritius based entities, NCDs issued to Kolkata based entities, claim of marketing expenses and penalty and prosecution. HELD THAT:- In the case of income revised percentage of profit, data considered are documents/materials that were....... + More

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• 2024 (4) TMI 1028
  Unexplained Cash Credit u/s 68 - Authenticity of the Will - sale consideration claimed to have been received by the appellant from sale of gold ornament and diamonds, which were given to him by his late grandmother by way of a will - onus to prove with regard to creditworthiness and genuineness of the transactions - AO observed that the source of increase in capital of the assessee through the sale of jewellery and diamonds is not verified and explained - THELD THAT:- It is clear from a bare reading of the Will that there are several inconsistencies and contradictions in it. Firstly, the age of the testator is stated to be 75 years in para 1....... + More

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• 2024 (4) TMI 1027
  Levy of penalty u/s 271(1)(c) - Denial of exemption of capital gains u/s 10(38) on account of sale of shares - company was not doing substantial business and not declaring dividend and accordingly disallowed the claim of exemption - penalty deleted by Ld. CIT(A) on the ground that since the issue in quantum proceedings has been decided in favour of the assessee by Hon ble ITAT - HELD THAT:- It is a well settled law that once the additions made in quantum proceedings have been deleted, then there is no question of sustaining levy of penalty u/s 271(1)(c) of the Act. In the case of CIT v Shah Alloys [ 2012 (9) TMI 957 - GUJARAT HIGH COURT] the....... + More

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• 2024 (4) TMI 1026
  Denial of benefit u/s 115BAA - while filing its return of income as it was unable to upload Form 10-IC due to technical glitches - scope of circulars or directions amending provisions of the Act - DR has argued that the appellant company has not exercised its option for taxation u/s 115BAA of the Act at the time of submitting ROI electronically in accordance with condition 3(ii) of the above CBDT circular - whether the appellant company being a domestic company is entitled to get its tax liability computed in accordance with the provisions of section 115BBA(1) of the Act? HELD THAT:- In view of rule 21AE, the appellant assessee domestic comp....... + More

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• 2024 (4) TMI 1025
  Assessment order passed u/s 153A - valid approval granted u/s 153D or not? - as submitted by assessee combined/consolidated approval issued u/s 153D by the Additional CIT/Central Range-7 Delhi without any reference on the order sheet and the same is mechanical one HELD THAT:- As referring to approval accorded makes it evident that such approval is generic and listless and accorded in a blanket manner without any reference to any issue in respect of any of 5 assessment years. Apparently, the approval has been granted on a dotted line without any availability of reasonable time which firms up the belief towards non application of mind. Besides....... + More

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• 2024 (4) TMI 1024
  Computation of short term capital gain - allowable expenditure u/s. 48 - disallowance of claim of management fees on the ground that it is not an allowable expenditure u/s. 48 as it is not wholly and exclusively incurred in connection with transfer of asset - HELD THAT:- Section 48 of the Act gives the mode of computation of income chargeable under the head Capital Gains . The section allows deduction in respect of expenditure incurred wholly and exclusively in connection with transfer of capital asset and the cost of acquisition and cost of improvement, if any. The contention of the assessee is that the management fee paid by the assessee t....... + More

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• 2024 (4) TMI 1023
  Disallowance u/s 36(1)(vii) - bad debt claim in respect of identified debts - HELD THAT:- The assessee has brought on record a chart containing party-wise details of accounts which have been claimed as bad debts i.e. identified debts u/s 36(1)(vii) which, according to the assessee has never been claimed u/s 36(1)(viia). As pointed out by the Ld. AR, the appeals of the Revenue filed against the decision of the Tribunal on the impugned issue for AY 2013-14 to 2015- 16 stand dismissed by the decision of Hon ble Delhi High Court [ 2023 (10) TMI 1244 - DELHI HIGH COURT] Revenue had also gone in appeal before the Hon ble Delhi High Court against t....... + More

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• 2024 (4) TMI 1022
  Validity of assessment / adjustment u/s 143(1) without prior intimation u/s 143(1) - Denial of exemption u/s 11 and Claim of Expenses by the CPC - HELD THAT:- Assessing Officer CPC, before making any adjustment/disallowance to the returned income as per the return of income filed by the assessee is duty bound to intimate the same to the assessee either in writing or in the electronic mode. However, we find that no such intimation has been given to the assessee before making the said adjustment or disallowance either in writing or in electronic mode. We have also examined the records of assessment proceedings on e-portal relating to the asses....... + More

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• 2024 (4) TMI 1006
  Delay of 690 days in filling appeal before HC - Dealy due to procedural issues in the new faceless appeal scheme - Intimation u/s 143(1) - disallowance of assessee's claim for deduction of delayed deposit of employees share of contribution towards ESI/PF u/s 36(1) (va) - HELD THAT:- The reason that the delay in filing of the present appeal can by no means be held to be justified for the reason that partners of the assessee firm had remained unaware about the order passed by the CIT (A) which was dropped in the e-mail account of his accountant, viz. Shri Amitabh Paul. As the reason given by the assessee firm regarding the inordinate delay....... + More

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• 2024 (4) TMI 991
  Reopening of assessment u/s 147 - new notice issued rather than orders to be passed u/s 148A(d) - validity of the AO s action in issuing the notice dated 23rd June 2022 - Whether contents of notice dated 23rd June, 2022 is distinct from the reasons to believe dated 27th March, 2021? - As decided by HC [ 2022 (9) TMI 105 - DELHI HIGH COURT] a perusal of the notice dated 23rdJune, 2022 and impugned order dated 22nd July, 2022 shows that as per the AO the details of the transaction which form the basis of the notices dated 19th April, 2021 and 23rd June, 2021 are same. Pertinently, the petitioner has not offered any explanation for the transact....... + More

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• 2024 (4) TMI 990
  Validity of Reassessment notices issued unsigned - maintainability of writ petition against this issue in HC - According to petitioner, absence of a signature on the impugned notice is a substantial defect and afflicts the impugned notice with manifest illegality and this defect is incurable - HELD THAT:- It is true that without the reasons to believe escapement of income, petitioner would not be able to file its objections to the notice issued under Section 148 of the Act. It is also true that this stand of illegality of the notice has been taken for the first time in the petition. In the two communications sent by petitioners' Chartere....... + More

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• 2024 (4) TMI 989
  Unexplained cash credit u/s 68 - non-establishment to prove the creditworthiness or the genuineness of a transaction - all investor companies are group companies - ITAT deleted the additions - HELD THAT:- CIT(A) has made an elaborate exercise to assess the creditworthiness of the investor companies as well as the genuineness. All the investor companies are group companies and the directors are closely related to the director of the assessee company and the director Mr. Agarwala himself is one of the directors in one of the investor companies, therefore, on a deeper scrutiny of the factual position would show that the investor company did not....... + More

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• 2024 (4) TMI 988
  LTCG - Receipt of additional amount towards Transferable Development Rights (TDR) - treatment to receipt of consideration the appellant ceased to be the owner of the property - compensation received for settlement of dispute in respect of allotment of Flat - HELD THAT:- If the Revenue had serious doubts on the genuineness of the letter or the understanding as reflected in the letter or the intention of the parties, it should have summoned the developer to confirm the same. It does not appear that the Revenue had summoned the developer or tried to find the veracity of the letter. We should also note that admittedly the letter is signed by the....... + More

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• 2024 (4) TMI 987
  Validity of Assessment order u/s 147 r.w.s. 144B - Assessment challenged being in violative of the principles of natural justice - HELD THAT:- Admittedly the petitioner was initially served with a notice on 12.11.2021 asking for the books of accounts and other documents mentioned in the annexure to the said notice. Another notice was served in this regard on 20.12.2021 giving reasons for re-opening of the assessment in the case of the petitioner for the year 2014-2015 u/s 147 - However, there has not been much of the developments till 17.03.2022 when the show cause notice was abruptly issued and the entire proceedings stood concluded within ....... + More

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• 2024 (4) TMI 986
  Condonation of delay - substantial delay of 166 days before ITAT - as argued the assessment order was passed by the A.O on 16.12.2018 and was issued on 29.12.2018 without any reasons for keeping the same with him, reasons recorded under Section 148(2) of the Act were not supplied to the assessee by the A.O and appeal of the assessee was dismissed by the CIT(Appeals) vide an ex-parte order dated 29.03.2023 etc. HELD THAT:-. Under section 69A of the Act, what is provided is that if an assessee is found to be the owner of any money, jewellery or any other valuable articles and such money is not recorded in the books of account and fails to offe....... + More

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• 2024 (4) TMI 985
  Income deemed to accrue or arise in India - Taxability of income earned from offshore supplies and attribution of profit to the permanent establishment (PE) in India - AO attributing 25% profits to the PE in India - HELD THAT:- The end to end activity covers design, supply, erection, commissioning, performance run of the entire paper mill. Thus, the assessee has to complete a single integrated project in terms of the contract. The agreement further reveals that assessee s obligation under the contract does not end with the supply of goods and equipments, but would only end with the satisfactory commissioning and performance run of the paper ....... + More

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• 2024 (4) TMI 984
  Condonation of delay - Delay in filling of an appeal before ITAT - appeal is delayed by 17 days - sufficient and reasonable cause for delay or not? - absence of a bonafide explanation - though the assessee had deposited the fees for filing the appeal before the Tribunal on 27.01.2024 but had kept the filing of the subject appeal in abeyance till 20.02.2024. The assessee has filed an affidavit wherein he had stated that as he was taken unwell on 30.01.2024, therefore, he could file the appeal only on 20.02.2024. HELD THAT:- Though the delay in filing the appeal may not be inordinate, it is the absence of a bonafide explanation of the assessee....... + More

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• 2024 (4) TMI 983
  LTCG - Correctness of long-term capital gain /loss from sale of immovable property - FMV determination - assessee is an individual and on the basis of information about sale of immovable property, case of the assessee was reopened u/s 147 after obtaining necessary approval from the Competent Authority - assessee is 50% owner of the immovable property - HELD THAT:- For calculating the long-term capital gain, indexed cost of acquisition is reduced from the sale consideration. AO has merely reduced the cost as on 01.04.1981 and has calculated the impugned addition. AO has not made any efforts to get the information about the Circle rate of the ....... + More

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• 2024 (4) TMI 982
  Rejection of application for registration u/s 12AA(1)(ac)(iii) and application of the assessee for final approval as per the provisions of section 80G(5)(iii) - CIT(E) observed that the assessee earlier was granted provisional registration in Form 10AC which was valid till A.Y 2026-27, he, therefore, held that the present application of the assessee being premature was not maintainable and rejected the same HELD THAT:- The assessee-trust has been granted registration u/s 12AB(1)(a) of the Act for five years vide order dated 31.05.2021 which is valid from A.Y 2022-23 to A.Y 2026-27. As per the provisions of section 12A(1)(ac)(iii) of the Act,....... + More

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Case Laws - GST

• 2024 (4) TMI 1060
  Validity of Service of notice u/s 74(5) instead of u/s 74(1) of CGST / UPGST Act, 2017 - Non-payment of Tax / GST - violation of principles of natural justice - HELD THAT:- From the record, it is clear that a notice was issued to the petitioner under Section 74(5) of the Act on June 4, 2021 wherein officer asserted that the tax is payable by the assessee. However, upon non-payment of the tax, Section 74(7) of the Act would come into play and the proper officer is required to give a notice under Section 74(1) of the Act. This procedure, that is to be followed, was not followed and no show cause notice was issued to the petitioner. Instead of ....... + More

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• 2024 (4) TMI 1059
  Levy of penalty - the e-way bill had expired one hour fifteen minutes prior to interception - intent to evade tax or not - HELD THAT:- This Court in M/s Hindustan Herbal Cosmetics v. State of U.P. and Others [ 2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/s Falguni Steels v. State of U.P. and Others [ 2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty. The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of....... + More

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• 2024 (4) TMI 1058
  Violation of principles of natural justice - Ex-parte order - non-appearance of petitioner on account of compelling grounds - quantification of liability under the Uttar Pradesh Goods and Service Tax Act, 2017 u/s 130 of the Act - intention of evade GST - improper accounting of goods - HELD THAT:- Upon a perusal of the judgement in M/S MAA MAHAMAYA ALLOYS PVT. LTD. VERSUS STATE OF U.P. AND 3 OTHERS [ 2023 (3) TMI 1358 - ALLAHABAD HIGH COURT] , it is clear that the quantification of tax liability cannot be done under Section 130 of the Act rather the authorities should take recourse to Section 74 of the Act. Furthermore, it appears from the r....... + More

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• 2024 (4) TMI 1057
  Breach of principles of natural justice - non application of mind - Calculation of Tax Liability based on subsequent year's Balance Sheet - non-service of SCN - petitioner did not reply to the show cause notice because the notice was uploaded on the View Additional Notices and Orders tab on the GST portal and not communicated to the petitioner through any other mode - HELD THAT:- The justification of the petitioner for not responding to the show cause notice is not convincing in as much as the petitioner is under an obligation to monitor the GST portal on an ongoing basis as a registered person. Therefore, it is also necessary to put the....... + More

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• 2024 (4) TMI 1056
  Breach of principles of natural justice - validity of assessment orders - contravention of sub-section (4) of Section 75 of applicable GST enactments by failing to provide a personal hearing after such reply was issued by the petitioner - HELD THAT:- On perusal of the documents on record, it is clear that the petitioner responded to the show cause notice. After receipt of such reply, the respondent did not offer a personal hearing to the petitioner. Subsection (4) of Section 75 of applicable GST enactments prescribes that a personal hearing should be offered either if requested for or if an order adverse to the tax payer is proposed to be is....... + More

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• 2024 (4) TMI 1034
  Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply dated 09.11.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is incomplete, not duly supported by adequate documents, unable to clarify the issue, not clear and unsatisfactory which ex-facie shows that Proper Officer has not applied ....... + More

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• 2024 (4) TMI 1033
  Interest and penalty liability - Petitioner discharged GST liability before issuance of SCN - Petitioner sought permission to approach the appellate authority by way of statutory appeal. - Benefit of the proviso to Section 50(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Petition is disposed of by permitting the petitioner to present a statutory appeal before the appellate authority subject to the condition that the petitioner remits a sum of Rs. 2.5 lakhs (Rupees two lakhs fifty thousand only) towards interest liability as agreed to within a period of three weeks from the date of receipt of a copy of this order. Subject t....... + More

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• 2024 (4) TMI 1032
  Imposition of 100% penalty - wrongful availment of Input Tax Credit - Late Filing of Writ Petition - Petitioner seeks an opportunity to contest the liability towards penalty by way of statutory appeal - HELD THAT:- By taking into account the fact that the entire tax and interest liability was discharged and that an appeal was not filed earlier since the petitioner intended to discharge liability to that extent, it is just and appropriate that the petitioner be permitted to file a statutory appeal only insofar as it pertains to penalty. Petition is disposed of by permitting the petitioner to file a statutory appeal only with regard to the pen....... + More

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• 2024 (4) TMI 1031
  Violation of principles of natural justice - appellant has been non-suited on the ground of alternate remedy - personal hearing was not given (on seeking adjournment for personal hearing) - mandate of Section 75 (4) stands complied or not - Tax not paid or short paid - HELD THAT:- The opportunity of hearing when is contemplated under the statute, it has to be comprehensive and it cannot be short-circuited. The show cause notice reflects that the date of reply was given on 30.10.2023 and before the personal hearing date is given, it would be about a superfluous and would defeat the actual intent of the legislation of giving an opportunity of ....... + More

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• 2024 (4) TMI 1030
  Cancellation of registration of petitioner - appeal has been dismissed on the ground of same being time-barred - HELD THAT:- The controversy involved in this writ petition is squarely covered by the order passed by a Division Bench of this Court in POONAMCHAND SARAN S/O LATE MANGALRAM SARAN, MOHAN SINGH S/O LATE SHRI SALAM SINGH VERSUS UNION OF INDIA [ 2022 (10) TMI 180 - RAJASTHAN HIGH COURT] where it was held that Both the petitioners are given liberty to file appeal against the cancellation of their GST registration to the competent authority within ten days from today. Upon such appeals being filed, the same shall be considered and decid....... + More

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• 2024 (4) TMI 1005
  Cancellation of GST Registration retrospectively - closure of business - Defective Show Cause Notice - HELD THAT:- We notice that Show Cause Notice and the impugned order are also bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer s registration with retrospective effect is that the taxpayer s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we....... + More

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• 2024 (4) TMI 1004
  Validity of Order passed Ex-Parte - No opportunity of personal hearing - typographical error the on date of hearing - Violation of principles of natural justice - HELD THAT:- In the instant case, respondents decided to give petitioner an opportunity of hearing and accordingly, as per the respondents, fixed a date of 18.12.2023 for a personal appearance. Admittedly no notice for the said date was either sent or delivered to the petitioner. Consequently, petitioner was prejudiced, inasmuch as, petitioner could not be present at the time of personal hearing and the case was decided in his absence adversely. Consequently, we are of the view that....... + More

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• 2024 (4) TMI 1003
  Rejection of refund application - unutilised input tax credit - Without following the mandate of circular Circular No.135/05/2020 - GSTR 1, GSTR 3B and GSTR 2A returns does not match with GSTR Returns - HELD THAT:- The petitioner asserts that all relevant documents, including invoices raised by the supplier and invoices issued by the petitioner in respect of outward supplies were submitted. The respondent should have examined the application in accordance with Section 54 of applicable GST enactments, the rules framed thereunder and the Circular referred to above. Since such exercise has not been undertaken properly, the matter requires recon....... + More

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• 2024 (4) TMI 1002
  Validity Of Order passed u/s 73 - Proper Officer not applied his mind - excess claim Input Tax Credit [ ITC ] - demand - Penalty - HELD THAT:- Perusal of the Show Cause Notice dated 24.09.2023 shows that the Department has given separate headings i.e., excess claim Input Tax Credit [ ITC ]; scrutiny of ITC availed on reverse charge; ITC to be reversed on non-business transactions exempt supplies; and under declaration of ineligible ITC. To the said Show Cause Notice, a detailed reply was furnished by the petitioner giving disclosures under each of the heads. The observation in the impugned order dated 30.12.2023 is not sustainable for the re....... + More

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• 2024 (4) TMI 1001
  Validity Of Order passed u/s 73 - cryptic order - input tax credit wrongly availed - demand - Penalty - No opportunity to clarify reply or furnish further documents/details - HELD THAT:- Perusal of the Show Cause Notice dated 30.09.2023 shows that the Department has given reasons under separate headings i.e., taxpayer has availed the more ITC as mentioned above in GSTR-3B in compression to the ITC available in GSTR-2A; short payment of tax in compression GSTR-1; and input tax credit has been wrongly availed and utilized by the taxpayer. To the said Show Cause Notice, detailed replies were furnished by the petitioner giving disclosures under ....... + More

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• 2024 (4) TMI 1000
  Cancellation of GST registration retrospectively - limitation - Defective Show Cause Notice - No opportunity provided to object - HELD THAT:- We notice that the Show Cause Notice and the impugned order are bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer s registration with retrospective effect is that the taxpayer s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during....... + More

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• 2024 (4) TMI 999
  Validity of an order u/s 83 - Seizure of the outward movement of funds from the bank account - Bank not permitting the operation - HELD THAT:- In view of Section 83 (2) of the Act, the life of an order of provisional attachment is only one year. In the instant case, the impugned communication is dated 14.08.2019 and a period of one year has elapsed from the issuance of the said communication. Consequently, the impugned order dated 14.08.2019 has ceased to be effective and cannot be any more implemented either by the respondents No. 1 and 2 or the HDFC Bank i.e., respondent No. 3. Accordingly, it is declared that order dated 14.08.2019 ceases....... + More

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• 2024 (4) TMI 998
  Validity Of Order-in-original - application seeking refund of tax - Period of limitation - Not fulfilled the mandate issued under circular - Payment of tax under the wrong head - HELD THAT:- In terms of the clarification issued by circular dated 25.09.2021, petitioner could have filed an application before expiry of two years from the date of payment of tax under the correct head i.e. before expiry of two years from 19.08.2019. However, the circular further clarifies that in cases where payment was made under the correct head prior to issuance of the circular, a further period of two years would be available from the date of circular, which ....... + More

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• 2024 (4) TMI 997
  Validity of adjudication order - without any application of mind - Rejection of application seeking refund - Show Cause Notice issued by an incompetent officer - HELD THAT:- We are of the view that the course adopted by the Appellate Authority is not sustainable for the reason that once the Appellate Authority comes to the conclusion that the Show Cause Notice was issued by an officer who was not competent; reply was also considered by an incompetent authority and the Competent Authority had not applied its independent mind, the Appellate Authority could not have assumed original jurisdiction and proceeded further with the matter. The Appell....... + More

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• 2024 (4) TMI 996
  Cancellation of GST Registration retrospectively - Defective Show Cause Notice - No opportunity for personal hearing - HELD THAT:- We notice that Show Cause Notice and the impugned order are also bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer s registration with retrospective effect is that the taxpayer s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such perio....... + More

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Case Laws - Customs

• 2024 (4) TMI 1048
  Conspiracy with the consignee and other persons - Smuggling - cigarettes - alloy wheels - metal scrap - initiation of proceedings under Sections 112 and 117 of Customs Act - notice was issued in compliance of provisions of Section 155(2) of the Act - It was held by High Court that The larger issue thus, remains whether there was a conspiracy with the consignee and other persons. These are factual aspects which the writ Court will not go into. Since the reply has already been filed, it is opined that it is for the authorities to take a decision on the above said show cause notices and it is not for the writ Court to entertain the petition of ....... + More

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• 2024 (4) TMI 1047
  Maintainability of Appeal - Appropriate forum - matter relates to the valuation of a car which was imported - rejection and redetermination of value - HELD THAT:- The matter concerns valuation of the imported goods and there is the clear bar of this Court (High Court) in entertaining this appeal. The appeal is held to be not maintainable before this Court.

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• 2024 (4) TMI 1046
  Seeking amendment of bill of entry - grant of benefit of N/N. 152/2009, dated 31-12-2009 - HELD THAT:- In the present case, it appears that nothing has been mentioned in the assessed bill of entry by the respondent with regard to the petitioner s entitlement of exemption under Notification No. 152/2009, dated 31-12-2009. Hence, the petitioner made a rectification application on 1-6-2023. However, in the said rectification application, no order has been passed by the respondent till date. The respondent is directed to dispose of the rectification application dated 1-6-2023 filed by the petitioner in accordance with law after affording an oppo....... + More

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• 2024 (4) TMI 1045
  Request for conversion of free Shipping Bills into Drawback Shipping Bills rejected - long lapsed period between exports (1998) and the request for conversion (2007) - section 149 of Customs Act, 1962 - HELD THAT:- The free shipping bills in question pertain to 1998 and the request for conversion was made in 2007. Although the request was made in terms of section 149 of the Act, as per the interpretation of this section by Delhi High Court in M/S. TERRA FILMS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS [ 2011 (4) TMI 13 - DELHI HIGH COURT] and Madras High Court in THE COMMISSIONER OF CUSTOMS (SEAPORT-EXPORT) VERSUS M/S. SUZLON ENERGY LIMITED [ ....... + More

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• 2024 (4) TMI 1044
  Provisional release of the goods allowed - SCN not issued within time limitation - seizure of goods under Section 110 (2) of the Customs Act, 1962 - HELD THAT:- As per Section 110 (2), the adjudicating authority was required to issue show cause notice under section 124 of the Customs Act within six months of seizure. The period of six months may on sufficient cause being shown can be extended for another period of six months, but in this case, neither any show cause notice has been issued to the appellant under section 124 of the Act nor the period for issuance of the show cause notice has been extended till date. Admittedly the goods have b....... + More

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• 2024 (4) TMI 1043
  100% EOU - Validity of EPCG Licenses - Cancellation of bonded warehouse licence, letter of permission (LOP) and registration - Duty liability u/s 28 - interest - export promotion capital goods (EPCG) scheme in the Foreign Trade Police (FTP) - breach of the principles of natural justice - HELD THAT:- On a perusal of the scheme of Customs Act, 1962, we find that there is no provision whatsoever for the consequences of cancellation of a warehousing licence other than through section 58 of Customs Act, 1962 by giving one month notice in writing and opportunity to be heard. Therefore, notwithstanding the issue of letter of permission which was al....... + More

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• 2024 (4) TMI 1021
  Refund Of excess amount of duty paid on short shipped quantity - Valuation - erroneous calculation of FOB value of the subject consignment - Export of Metallurgical Grade Gibbsitic Bauxite of Indian Origin - 100% EOU - violation of principles of natural justice - whether the refund claim was considered by the adjudicating authority or not - HELD THAT:- It is clear from reading provision of sec.14 for Valuation of goods, that what is exported are goods as presented for export at Indian port with the value having been indicated as the transaction value being the value for export from India for delivery at the time in place of exportation (bein....... + More

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• 2024 (4) TMI 1020
  Import of road construction machines - Benefit of exemption - Actual user conditions - requirements of a valid contract for road construction. - Goods declared as New Python 5000 Pothole Patchers Machine - duty exemption under Notification No. 12/2012 (Sl. No. 368, list 16) - adjudicating authority denied the benefit of notification to the importer on the ground that the imported machines being used to patch-up or repair minor cracks / potholes which develop on the existing road surface were not found specified under List 16 - Validity of contract with NHAI etc. for the construction of roads in India - HELD THAT:- We find that Boards Circula....... + More

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• 2024 (4) TMI 1019
  Transaction value - Valuation (Customs) - Related person - loading of import value - Modular panels of different sizes for use in the construction industry - imports raw materials - provisional duty assessment - special or abnormal discount to the related buyers which were in excess of 3% discount - HELD THAT:- We find that the Chairman and Managing Director of Paschal Germany has confirmed that their normal trade practice in the course of international trade is to offer discount at the range of 25% to 40% of the normal sale price to all their customers located across the globe including the group companies/ affiliates. The importer has also....... + More

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• 2024 (4) TMI 1018
  Challenging the assessment of Bill of Entry - The assessing authority initially rejected this claim, prompting the appellant to file a revised Bill of Entry without claiming the benefit of these notifications. Subsequently, the appellant filed an appeal challenging the assessment made by the Customs authorities. - Benefit of concessional rate of customs duty and CVD - appeal rejected by taking the recourse of Section 17(5) of the Customs Act, 1962 - HELD THAT:- In the present case, it is found that after rejection of the appellant s claim of benefit under the above said notifications as declared in their Bills of Entry, they paid the duty un....... + More

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• 2024 (4) TMI 1017
  Violation of principles of natural justice - denial of cross-examination - Pre-mature appeal - HELD THAT:- Though appellant contended that denial of cross-examination would prejudice the case of the appellant, but it would always be open to the appellant to raise this issue once the final order is passed by the Principal Commissioner. It would not be appropriate, at this stage, when the Principal Commissioner is in the process of adjudicating the show cause notice, to examine this issue. The appeal is, accordingly, dismissed with liberty to the appellant to raise the issue of denial of cross-examination before the Tribunal after the Principal Commissioner decides the matter.

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• 2024 (4) TMI 1016
  Smuggling - Confiscation of Silver Jewellery, Silver Boondi Indian Currency - third country origin - Penalty - recovery of contraband goods from the house and Gaddi - Burden of proof - presumption u/s 123 - HELD THAT:- We find that the search made on the basis of that respondent is dealing with the contraband goods and during the course of investigation, no contraband goods were recovered. The respondent being a trader in silver ornaments/silver boondi, was searched and 79.58 kgs. of Silver Jewellery, 50 kgs. of Silver Boondi, Indian Currency amounting to Rs. 79,00,000/- were recovered. These were presumed by the Revenue and these are the th....... + More

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• 2024 (4) TMI 975
  Review application - Maintainability of application before Supreme Court - Classification of goods - it was held by the High Court that Admittedly, in the instant case, the stand of the department is that the goods dealt with by the respondent/assessee are not covered by the exemption notification. If that be so, the appeal is maintainable before the Hon ble Supreme Court - HELD THAT:- It is not required to interfere in the matter. The Special Leave Petitions are dismissed.

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• 2024 (4) TMI 974
  Refund of EDD - Period of limitation - Appellant unaware of finalisation of bills of entry - request for finalisation of their provisional bills of entry and cancellation of pre-deposit - HELD THAT:- It is found from the order in original dated 10.03.2021 that nowhere has the original authority mentioned the date of finalisation of the bills of entry, although he has only mentioned that the finalisation was made before July 2019. Further, in the communication dated 27.01.2020 again, the deputy commissioner while intimating about the finalisation of the bills of entry, has asked the appellant to approach refund section insofar as refund of ED....... + More

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• 2024 (4) TMI 973
  Reduction in the quantum of redemption fine and penalty - enhancement of value - old and used worn clothing, completely fumigated - Confiscation - HELD THAT:- This issue came up before this Tribunal in the case of VENUS TRADERS, RAINBOW INTERNATIONAL, AL-YASEEN ENTERPRISES, GLOBE INTERNATIONAL, KRISHNA EXPORT CORPORATION, PRECISION IMPEX, BMC SPINNERS PVT. LTD., SHIVAM TRADERS, LEELA WOOLEN MILLS, M.U. TEXTILES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) MUMBAI [ 2018 (11) TMI 625 - CESTAT MUMBAI ], wherein this Tribunal has observed the failure of the original authority to comply with the direction in remand to disclose the margin of profit th....... + More

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• 2024 (4) TMI 972
  Classification of imported goods - Small Form-factor Pluggable (SFP)-25G-SR Optical Transceiver - SFP-10G-SRL Optical Transceiver - QSFP-10G-UNIV Optical Transceiver, etc. - classifiable under Customs Tariff Item (CTI) 8517 6290 or not - exemption/ duty concession under Notification No.57/2017-Customs dated 30.06.2017 (Sl. No.20), as amended - HELD THAT:- It is found that imported goods under dispute have been declared with complete description as Small Form-factor Pluggable (SFP) - Optical Transceiver of various models and notification benefit under Sl. No.20 of Notification No.57/2017-Customs dated 30.06.2017 was claimed for concessional B....... + More

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• 2024 (4) TMI 971
  Valuation of imported Goods - Allowance of discount of 25% to appellant by foreign supplier - related party transaction - remittances made higher than the invoice price or not - HELD THAT:- In the agreement dated 16.06.2001 executed by the appellant and the foreign supplier, the amount of discount was mentioned as 17% only - The invoices raised by foreign supplier showed 25% discount and the remittance by the appellant was made accordingly. The department does not have a case that the remittances do not match with invoice value. In para 8 of the denovo order the adjudicating authority has noted that the appellant has furnished all the partic....... + More

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• 2024 (4) TMI 919
  Detention Order under COFEPOSA - legal heirs of detenu - Smuggling - diesel oil of foreign origin - seeking to impugn detention order dated 02.05.2005 on the ground that proceedings under SAFEMA have been initiated (action against detenu was initiated under SAFEMA during his lifetime) - HELD THAT:- As per investigation conducted by DRI, detenu was found to be the person who was directly involved in the smuggling and for organizing the finances as well as logistic and, therefore, detention order passed under Section 3(1)(i) of COFEPOSA was fully justified. It is also reiterated that detenu, when he was alive, could have easily prayed this Cou....... + More

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• 2024 (4) TMI 918
  Levy of penalty - mis-declaration of goods - unflavoured boiled supari - reduction of the penalty under section 112 by the Commissioner (Appeals) - according to Revenue reduction was very high and unwarranted and according to the respondent it was fair and proper - what does the expression shall be liable to , in section 112 (and 111, 113, 114, etc.) signify? Does it mean that a penalty shall be imposed or that a penalty can be imposed? - HELD THAT:- A common misunderstanding of this expression is that the adjudicating authority has to only see if the goods fall under one of the clauses of Section 111 or 113 and if so, confiscate them and to....... + More

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• 2024 (4) TMI 917
  Suspension of license of public bonded warehouse - bonded goods were stored in non-bonded tanks - appellants pleaded that the disputed goods cannot be confiscated, when subsequent permission for bonding of tanks was given by the department - Sub-section (2) of Section 58B of the Customs Act, 1962 - HELD THAT:- It is an admitted fact on record that the appellants have obtained the public bonded warehousing license from the competent authorities for carrying out the activities therein. Whenever the imported goods were required to be stored in the warehouse, the appellants have taken necessary permission from the competent authority for movemen....... + More

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Case Laws - Corporate

• 2024 (4) TMI 871
  Violation of Section 233 of the Companies Act, 2013 - requirement of holding at least ninety percent of the total numbers of shares, for approval of scheme of amalgamation - non-application of mind - HELD THAT:- In the present case it is evident that the trial Judge has taken cognizance without any application of judicial mind. The order taking cognizance in this case has been only a formality - There is absolutely no application of mind. Cognizance has been taken casually without any prima facie findings. There is also no reason for the petitioner to commit fraud by making a false statement as the petitioner has the option to take recourse ....... + More

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• 2024 (4) TMI 728
  Professional Misconduct by CA - Failure to disclose a material fact known to him which is not disclosed in a financial statement, but disclosure of which is necessary in making such financial statement where the statutory auditors are concerned with that financial statement in a professional capacity - Failure to report a material misstatement known to him to appear in a financial statement with which EP is concerned in a professional capacity - Failure to exercise due diligence and being grossly negligent in the conduct of professional duties - Failure to obtain sufficient information which is necessary for the expression of an opinion, or ....... + More

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• 2024 (4) TMI 635
  Seeking directions against the respondent no. 1/National Housing Bank (NHB) to consider and decide upon the petitioner s representation dated 18th August, 2023 - seeking direction to call upon respondent no. 2, i.e., India Bulls Housing Finance Limited (IBHFL) to produce the responses and relevant documents, disclosing the actions taken by them in respect of the query dated 6th April, 2023 addressed by the petitioner. HELD THAT:- The petitioner has been in litigation with IBREL and seeks to collect information and documents through the process of the present petition, so as to use the same to file intervention application before NCLAT, New D....... + More

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• 2024 (4) TMI 480
  Oppression and Mismanagement - Validity of the Lease Deed - Doctrine of Res Sub-Judice - Appellants argued that the Tribunal overstepped its jurisdiction by setting aside the lease deed while its validity was under scrutiny in a civil court - HELD THAT:- The bedrock of this case is the lease deed dated 26.08.2019, executed pursuant to the resolution dated 23.08.2019 which is not only contrary to the provisions of Section 188(1) of the Act r/w Rule 15 of the companies (Meeting of board and its powers) Rules 2014 but also clause 36(ii) of the AoA as on 23.08.2019, which provides that the board of directors shall not, without consent of 100% me....... + More

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• 2024 (4) TMI 479
  Rightful owners of 4000 shares or not - Exercise of jurisdiction under Section 8 of the Arbitration and Conciliation Act - HELD THAT:- Language of Section 8 of the Arbitration and Conciliation Act has inherent restrictions. The Section puts a bar on the courts not to go outside the contours of Section 8 and the Court can only exercise jurisdiction to see if there is a valid clause and whether the dispute is arbitrable. Thus to give a finding at this stage to the effect R1 and R2 are owners of 4000 shares, which in fact is the main relief claimed in the Company Petition, the Ld. NCLT certainly had travelled beyond its jurisdiction. There was ....... + More

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• 2024 (4) TMI 442
  Demand of unearned increase value - Amalgamation or merger of the two companies does not involve any transfer within the meaning of the Transfer of Property Act, 1882 or not - Interpretation of Lease Agreement Clause - HELD THAT:- There is a specific clause in the order of amalgamation which holds that the said plots stand transferred from the original permanent lessee to the transferee M/s. Jaypee Rewa Cement Ltd, which is now known as M/s. Jaiprakash Associates Ltd. Clause II(4)(a) covers all the categories of transfers as it provides that the lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any....... + More

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• 2024 (4) TMI 308
  Liability of stamp duty on increase in share capital - How stamp duty is to be applied to Articles of Association in cases of increased share capital? - HELD THAT:- Filing of Form No. 5 is only a method prescribed, whereby notice of increase in share capital or of members of a company has to be sent to the Registrar, within 30 days of passing of such resolution. The Registrar then has to record such increase in share capital or members, and carry out the necessary alterations in the articles. Stamp Duty is affixed on Form No. 5 as a matter of practical convenience because a company itself cannot carry out the alterations and record the incre....... + More

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• 2024 (4) TMI 307
  Division of shares among the deceased's children - Interpretation of will - To be treated as part of her movable properties or not - equal division of the 100 shares of the appellant company-Vantage Construction (P) Limited, between the three children of the testator - cancellation of allotment of 9800 shares - HELD THAT:- What is apparent is that the issue with regard to the shareholding of the deceased was very much alive and in the knowledge of the parties. The whole tone and tenor of the correspondence between the parties referred hereinabove would show that HPSC was always ready and willing to transfer 1/3rd shareholding in the two ....... + More

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• 2024 (4) TMI 306
  Recovery of outstanding dues - priority of charges - whether Andhra Bank, which had the first charge over the property in question and is evidently a secured creditor, could have effected a sale of the property in question by way of a private treaty? - Legitimacy and consequences of a Sale Deed executed by the company in liquidation. - HELD THAT:- This Court has gone through the relevant provisions of the SARFAESI Act, 2002 as also the Companies Act of 1956. There is no gain saying that the company (in liquidation) was a borrower in terms of Section 2(f) of the SARFAESI Act and the debt was taken and in existence against the property in ques....... + More

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• 2024 (4) TMI 242
  Seeking conversion from an unlimited liability company to a limited liability company - Section 18 of the Companies Act, 2013 - whether the Appellant s application filed on 21st October, 2014 before the ROC will be governed by the conditions in the statutory provision of Section 18 of the Act as it existed on the said date or the additional criteria provided in Rule 37, which was inserted subsequently by the Legislature w.e.f. 27th July, 2016, would also be applicable to the said application? - HELD THAT:- The submissions of the Appellant cannot be accepted and it is opined that the Appellant did not acquire any vested right of conversion up....... + More

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• 2024 (4) TMI 177
  Maintainability of Criminal proceedings - Violation of principles of natural justice - facts as mentioned in the chargesheet as well as other material placed on record were not taken into consideration - illegal allotment of shares - illegal appointment of petitioner as a director and transfer of shares by misusing the digital signatures of the petitioner - HELD THAT:- Without going into the details of the present case, this Court is of the considered opinion that the learned Trial Court while passing the impugned order did not take into consideration the facts as mentioned in the chargesheet as well as other material placed on record by the....... + More

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• 2024 (4) TMI 176
  Anti-competitive agreements - Cartelisation - allegation is that appellant wrongly clubbed with members of the Cartel without any application of mind by the Commission - contravention of the provisions of Section 3(3)(a), 3(3)(c) and 3(3)(d) read with Section 3(1) of the Competition Act - HELD THAT:- In STATE OF MAHARASHTRA VERSUS KAMAL AHMED MOHAMMED VAKIL ANSARI ORS. [ 2013 (3) TMI 731 - SUPREME COURT ] it was held in a proceeding under the Competition Act, the strict rules of evidence are not applicable. Admittedly, all the statements are made by witnesses who were the authors/recipients of the emails and have confirmed their interaction ....... + More

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• 2024 (4) TMI 121
  Oppression and Mismanagement - Deletion of names of Respondent No. 4 to 8 and 13 from the array of the Respondents - Section 241, 242 and 243 of Companies Act - HELD THAT:- The very fact that the stay granted against the Respondent No. 4 to 8 and 13 continued for two years and was vacated on 18.12.2019 may be with an observation that Respondent No. 4 to 8 were nowhere related with such transaction, the recourse of which lie in the civil court and also the fact that the said order was not challenged rather the civil suit was filed by the Appellants and thereafter in order to avoid legal complication of maintaining the main petition on the sam....... + More

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• 2024 (4) TMI 120
  Recovery of premium dues, interest, default interest, penal interest, interest overdue etc. - priority of charges - waterfall mechanism - whether as per the Concession Agreement and the Escrow Agreement, payment of premium has priority over the payment of debts of the Bank? - HELD THAT:- The Concessionaire has agreed that it shall pay to the Authority for each year of the Concession Period, a premium in the form of an additional concession fee. The Clauses 25.4 and 26.2 contain an agreement of Concessionaire to pay the Authority a premium in the form of an additional concession fee. The definition, thus, clearly indicate that premium is trea....... + More

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• 2024 (3) TMI 1243
  Oppression and Mismanagement - denial of inspection of the books of accounts - EOGM not called for - purchase of loan without consent - failure to comply with statutory compliances - Validity of direction for independent forensic audit - HELD THAT:- The appellant was directed to file reply affidavit. Admittedly the appellant neither filed its reply affidavit nor documents as are now filed before us. It is in these circumstances it is needed to examine if the impugned order was wrong. Admittedly if the reply affidavit and documents were not filed before the Ld. NCLT then there was nothing before the Ld. Tribunal except to proceed on submissio....... + More

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• 2024 (3) TMI 1242
  Seeking restoration of name of the company on ROC - failure to file the Financial Statement and Annual Returns since incorporation - Section 252 of Companies Act, 2013 - HELD THAT:- It is not the case of the respondent that appellant company was ever engaged in the transfer of the funds to its own sister concerns or that it is a Shell company or is engaged in siphoning of funds of another company. Rather the appellant claims to have carried commercial transactions with a view to establish a relationship with DPIL in order to commence its operations in consonance with the objectives of the appellant company and had amassed substantial assets ....... + More

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• 2024 (3) TMI 1241
  Sanction of composite scheme of amalgamation - Section 230-232 of the Companies Act read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - The appellants contested the impugned order, alleging it was passed without considering the relevant clauses of the scheme of amalgamation - HELD THAT:- The impugned order doesn t discuss if the scheme of amalgamation was separable as pointed out in clauses no. 1.2.2 and 23.1. The impugned order is completely silent on these clauses. Even otherwise, section 231(1) (b) of the Companies Act duly empowers the Ld. NCLT to exercise discretion to give such directions in regard to any mat....... + More

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• 2024 (3) TMI 1240
  Professional mis-conduct by CA - SCN was not accompanied with documents relied upon against the Appellant and only a reference to the documents has been made in Annexure A appended with the show cause notice - non-compliance/violation of principle of natural justice by the NFRA - HELD THAT:- The fact remains that the Appellant has relied upon the reply filed by the Firm to the SCN which is pari materia the same in which he was working as engagement partner and shall knock the bottom of his case as now he cannot be allowed to take a different stand. The Appellant was required to file the reply to the show cause notice dated 15.11.2022 within ....... + More

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• 2024 (3) TMI 1144
  Oppression and Mismanagement - Appointment of Whole Time Director to the Company for a period of three years under Section 408 of the Companies Act, 1956 - control and interference by the Central Government appointees in the Board to cease consequent to the repeal of Section 408 of the Companies Act, 1956 or not - Advocates representing the appellants argued against the CLB's orders, focusing on the irregularities in the appointment of directors, the lack of effective management, and the adverse impact on the residents due to undeveloped infrastructure. HELD THAT:- It is a matter of record that the Government nominated Directors, over th....... + More

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• 2024 (3) TMI 991
  Validity of SCN proposing to declare the petitioners as wilful defaulters - Classification of Account as NPA - Impact of CIRP proceedings under IBC - Declaring the petitioners as wilful defaulters in terms of the Master Circular on Wilful Defaulters issued by the Reserve Bank of India (RBI) on July 1, 2015 - whether the injunction order passed by the writ court against the respondent-Bank, on the premise that the NPA classification was de hors the Master Circular, can be a relevant consideration for vitiating the Show-cause Notice? - HELD THAT:- In the present lis, even if the best case of the petitioners is taken into consideration, applyin....... + More

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Case Laws - IBC

• 2024 (4) TMI 1042
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - Civil Suit for specific performance - non-allotment of 39100 sq. ft. built-up area of land or not - default in terms of Section 3(12) of the I B Code, 2016 - it was held by NCLAT that There is no financial debt in favour of the Appellant. It is pertinent to mention that Appellant's pleading is that the amounts have been paid by the Appellant to the Respondent and the consent decree itself is the debt for which Section 7 Application has been filed - HELD THAT:- There are no good ground and reason to interfe....... + More

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• 2024 (4) TMI 1015
  Approval of Resolution Plan - appellant submitted that the personal guarantees given by the individual guarantors, could not have been made the subject matter of the resolution plan with regard to the Corporate Insolvency Resolution Process of the corporate debtor - HELD THAT:- Issue notice, returnable in the week commencing 20.08.2024. Notice will be served by all modes, including dasti.

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• 2024 (4) TMI 1014
  Liquidation of the Corporate Debtor - Application seeking extension of timeline for making the payments under the approved Resolution Plan dismissed - HELD THAT:- The Resolution Plan indicates that Resolution Applicant is a technocrat entrepreneur, who is a M. Tech from Indian Institute of Technology (IIT), Mumbai and holds more than three decades of experience in the field of Boilers and Thermal systems related equipment s design and manufacturing. In his Resolution Plan, the Appellant claimed completion of various projects and detailed the potential and technologies developed by the CD. As per the Resolution Plan, the amount was to be paid....... + More

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• 2024 (4) TMI 970
  Initiation of CIRP - Maintainability of application filed u/s 9 of the Code - additional work got done, with the approval of MD of the Respondent, was not approved by the competent committee - Appellant has taken recourse to Arbitration under MSME Act - Respondent being a government company (PSU) is out of purview of the Code or not - debt of default was not correctly mentioned in the original petition - HELD THAT:- The Impugned Order records that the Respondent doubted existence of letter dated 02.12.2016 and 05.12.2016 as these were not available in the files of the Respondent. It is strange to note that the same Impugned Order, observed i....... + More

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• 2024 (4) TMI 969
  CIRP - Validity of deed of assignment of lease - Seeking to set aside of the notice served upon them by the Respondent - Resolution Professional wanting to inspect and access certain premises belonging to the Appellant - whether the Deed of Assignment was disputed or not by the Appellant? - whether the Lease Deed in respect of the subject property, consequent on its expiry on 14.11.2021, was further extended? - whether the Corporate Debtor was in clear possession of the same at time of commencement of CIRP? HELD THAT:- Clause 2.1 of the Deed of Lease as placed at para 9 states that the Lease deed clearly stipulated that any extension of the ....... + More

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• 2024 (4) TMI 968
  Rejection of Section 7 Application - NPA - live guarantee constitute debt or not - existence of default or not - Corporate Debtor unable to de-risk the live BGs within the time allowed - A settlement was reached between the parties, where the Corporate Debtor agreed to pay a certain amount and de-risk live Performance Bank Guarantees (PBGs) within specified timelines. - HELD THAT:- It is clear that settlement amount having been paid, the Adjudicating Authority did not commit any error in rejecting Section 7 Application, which was only based on Corporate Debtor not being able to de-risk the live BGs within the time allowed. The present is not....... + More

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• 2024 (4) TMI 914
  Offences triable by Special Court - Offenses under the IBC - offences other than the Companies Act cannot be tried by the Special Court consisting of Sessions Judge or Additional Sessions Judge or not - Whether the Special Court under the Code would be as provided under Section 435 of the Companies Act as it existed at the time when the Code came into effect, or it would be as provided under Section 435 of the Companies Act after the 2018 Amendment? HELD THAT:- This Court has held that once a finding is recorded that an Act is a self-contained code, then the application of either of the doctrines i.e. legislation by reference or legislation ....... + More

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• 2024 (4) TMI 913
  Condonation of delay of 181 days in filing appeal - HELD THAT:- The delay of 181 days is beyond the maximum period which can be condoned under Section 62 of the Insolvency and Bankruptcy Code 2016. The Civil Appeal is accordingly dismissed on the ground of limitation.

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• 2024 (4) TMI 869
  Rejection of application filed by the Appellant (Suspended Director) before the Adjudicating Authority - Challenging the authority of another director's actions and Approval of Resolution Plan CIRP - The appellant contends that the reply filed by another director on behalf of the Corporate Debtor was unauthorized and vexatious, intended to obscure alleged collusions and mismanagement. - HELD THAT:- The Adjudicating Authority in the impugned order has although noted certain submission of the Appellant made in the application but held that there being no authorization of the Board of Directors to file the application, application appears t....... + More

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• 2024 (4) TMI 868
  Direction for payment of fees to the Interim Resolution Professional and reimbursement of Rs 9 lakhs as CIRP expenses - wrong fixation of IRP fees - lack of earnestness and proficiency on the part of the IRP - HELD THAT:- There is no dispute over the fact that only three CoC meetings were held. The 1st, 2nd and 3rd meetings of the CoC were held on 24.06.2019, 13.11.2019 and 31.01.2020 respectively and all the three meetings were attended by the Authorised Representatives of the Appellant. However, when the decision-making process is analysed, it is noticed that that there were clear signs of lethargy and tendency on the part of the Appellant....... + More

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• 2024 (4) TMI 867
  Admission of Section 9 application filed by Operational Creditor - time limitation - Section 10A of IBC - HELD THAT:- Section 10A of the Code prohibited filing an application under Sections 7, 9 10 for any default arising on or after 25.03.2020. The prohibition continues for one year from 25.03.2020 i.e., upto 24.03.2021. On looking into the Part IV of the application as well as the statement showing particulars of claim it is clear that apart from lease rental from April 2021, all claim was within the 10A period. For lease rental of April 2021, no CIRP can be commenced since it did not fulfil the threshold. The Adjudicating Authority was of....... + More

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• 2024 (4) TMI 866
  Approval of Resolution plan - Propriety of the valuation exercise conducted by the RP - lenders of the Corporate Debtor are allowed to pursue the personal guarantees given by the Appellant - Corporate Debtor intended to be kept as a going concern or not - resolution plan was within the contours of Section 30(2) of the IBC or not. Propriety of the valuation exercise conducted by the RP - HELD THAT:- The RP did not violate the CIRP Regulations in the conduct of the valuation exercise. The RP had followed Regulation 27 to disclose the estimated fair and liquidation value of the Corporate Debtor. Further, we find that the CoC had duly considered....... + More

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• 2024 (4) TMI 828
  Release of assets (machines) seized by the Customs Authorities before initiation of CIRP - violation of principles of natural justice - HELD THAT:- On looking into the order of the Adjudicating Authority, it is clear that the order contains only direction to release the goods to the Customs Department without giving any reason and without even adverting to the facts, which were mentioned by the Applicant himself in the Application. The order of Adjudicating Authority, which does not give any reason for allowing the Application, deserves to be set aside on this ground alone. The statutory provision of Section 126 is clear and it does not need....... + More

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• 2024 (4) TMI 827
  Bench Reconstitution and Order Pronouncement - W hether an order reserved by a bench could be pronounced by a reconstituted bench without considering a subsequent application that called for a re-hearing based on new developments. - Admission of section 7 application - challenge to proceedings in SARFAESI Act initiated by Financial Creditor - HELD THAT:- In exercise of appellate jurisdiction, the Appellate Court can take all decision, which could have been passed by Adjudicating Authority while deciding Section 7 Application. In the present case, sequence of events and facts as noticed above shows that subsequent Application filed in Novembe....... + More

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• 2024 (4) TMI 826
  Admission of Section 7 Application of the Financial Creditor - commission of default or not - Corporate Debtor / Guarantor failed to fulfil obligations - existence of debt and default or not - HELD THAT:- Admittedly, in the instant case on hand, the Loans, were given by the Financial Creditor / Bank to the Principal Borrower (Coastal Energen Private Limited) and the Corporate Debtor (Fossil Logistics Private Limited), is the Corporate Guarantor, for the Loans, availed by the Coastal Energen Private Limited, as against the Coastal Energen Private Limited / Principal Borrower, an Application for initiating CIRP, was filed by the 1st Respondent....... + More

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• 2024 (4) TMI 825
  Rejection of application by the impugned order - Secured creditors or not - It is submitted that the NOIDA Authority was treated as an Operational Creditor and an amount of Rs.10 Crore was earmarked in the plan - HELD THAT:- NOIDA Authority was the lease holder and the records of lease were already with the Resolution Professional being record of the Corporate Debtor, therefore, the claim has to be reflected by the Resolution Professional in the Information Memorandum. In view of the judgment of this Tribunal in MR. ANIL MATTA VERSUS GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY AND ATUL MITTAL (RESOLUTION PROFESSIONAL OF ZEAL DEVELOPERS PV....... + More

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• 2024 (4) TMI 727
  Approval of Resolution Plan - whether the Appellant is secured creditor of the Corporate Debtor or not? - whether the decision of the RP declaring the Appellant as unsecured creditor is in accordance with law? - HELD THAT:- It is true that Section 3(31) does not refer to any registration of charge under Section 77. The judgment of the Hon ble Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. vs. Raman Ispat Pvt. Ltd. [ 2023 (7) TMI 831 - SUPREME COURT ], which has been relied by learned Counsel for the Appellant, is noticed. The above was a case where a claim was filed under IBC for government dues. The assets of the Corporate Debtor w....... + More

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• 2024 (4) TMI 692
  Dismissal of application seeking direction to release payment as an Operational Creditor, for the services rendered during the CIRP period - it was held by NCLAT that In view of the aforesaid discussion and the fact that Resolution plan was approved way back on 28.02.2020 by the Hon ble Supreme Court and has been implemented, we do not find any merit in the present appeal and the same is hereby dismissed. HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.

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• 2024 (4) TMI 691
  Prayer for condonation of delay - it was held by NCLAT that Our jurisdiction to condone the delay being limited to 15 days and we having held that benefit of Section 14 of the Limitation Act cannot be extended to exclude period during which I.A. No. 2337 of 2023 and I.A. No. 3270 of 2023 remained pending before the Adjudicating Authority, the Delay Condonation Applications which prays condonation of 74 days delay deserves to be dismissed. HELD THAT:- There are no reason to interfere with the order of the National Company Law Appellate Tribunal since no substantial question of law is involved in the appeal - appeal dismissed.

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• 2024 (4) TMI 690
  CIRP - Preferential Transaction - transactions infringing section 43 of the IBC - it was held by NCLAT that In the background of the report of Forensic Audit of the Corporate Debtor , it is quite clear that the said transactions amounting to Rs.7,81,352 are preferential transactions , as defined under section 43 of the IBC - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.

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Case Laws - PMLA

• 2024 (4) TMI 865
  Maintainability of the instant petition - Money Laundering - scheduled offences - predicate offence - scope and spirit of Section 482 of the Cr.P.C. - whether the ECIR can be quashed in the exercise of its inherent jurisdiction under Section 482 Cr.P.C. by this Court? - HELD THAT:- On a minute perusal of the observations of Hon ble the Supreme Court in Vijay Madanlal Choudhary s case [ 2022 (7) TMI 1316 - SUPREME COURT] , it can be safely culled that an ECIR cannot be kept at the same pedestal as an FIR. It is crucial to note that an ECIR is not registered under the Cr.P.C., unlike a First Information Report (FIR), which is mandatorily regis....... + More

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• 2024 (4) TMI 718
  Seeking grant of pre-arrest bail - Money Laundering - predicate offence - proceeds of crime - illegal gratification - section 45 of PMLA - HELD THAT:- In the case of ROHIT TANDON VERSUS THE ENFORCEMENT DIRECTORATE [ 2017 (11) TMI 779 - SUPREME COURT ], three-judge bench of the Hon'ble Apex Court has held that such statements are admissible in nature and can make out a formidable case about involvement of accused in the offence of money laundering. Furthermore, the challenge to Section 50 of PMLA was rejected by the Hon'ble Apex Court in case of Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT] , wherein it was held that t....... + More

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• 2024 (4) TMI 689
  Money Laundering - summons issued by the petitioner, ED under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT:- From the documents produced on record today, it appears that the said respondents Collectors instead of respecting this Court s order, did not appear in person and filed their replies to the summons dated 01.03.2024 issued by the ED, stating inter alia that the information and data sought for is maintained by the other executive wings and would be required to be collected from different departments and offices located at various places and the process will require some time. When the Court had passed t....... + More

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• 2024 (4) TMI 688
  Seeking grant of anticipatory bail - Money Laundering - twin conditions of Section 45 of the PMLA Act satisfied or not - main accused was exonerated on identical allegations by the Adjudicating Authority - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PM....... + More

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• 2024 (4) TMI 687
  Money Laundering - Proceeds of crime - attachment of moveable property of the appellant - HELD THAT:- The perusal of the provision of Section 5 of PMLA reveal that the attachment of the property is warranted when it is involved in money laundering and the person is in possession of the proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation. The attachment of the property thus pre-supposes not only it to be proceeds of crime but apprehension of its concealment or transfer, etc. In the instant case, it is not in di....... + More

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• 2024 (4) TMI 686
  Money Laundering - provisional attachment order - Without there being any evidence to prove a case of money laundering by the appellant, the order of attachment has been confirmed by the Adjudicating Authority - violation of principles of natural justice - HELD THAT:- As per the accounting system, payment towards the supply of material has to be made by the firm to whom supplies have been made. It cannot by a stranger firm unless proper arrangements in writing are made. The facts of this case are quite alarming. The transaction to deposit the amount in the bank account of the appellant was not under normal circumstances but was at the time o....... + More

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• 2024 (4) TMI 667
  Money Laundering - grant of interim stay of the operation of the impugned summons issued by the petitioner ED - Section 50 of PMLA - HELD THAT:- From the section it clearly transpires that the concerned officers as mentioned therein, have the power to summon any person whose attendance he considers necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since, the petitioner ED is conducting the inquiry / investigation under the PMLA, in connection with the four FIRs, and since some of the offences of the said FIRs are scheduled offences under PMLA, the same would be the inves....... + More

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• 2024 (4) TMI 629
  Seeking release of petitioner - illegality in the arrest of the petitioner or not - whether petitioner was not produced before the learned Special Court within 24 hours of his arrest as mandated in law? - HELD THAT:- It is Section 19 of the PMLA which gives power to the Investigating Officer to arrest an individual against whom material is collected as contemplated under Section 2(1)(na), after following the process contemplated under Section 50 of the PMLA. Thus, the petitioner became an accused only when he was arrested under Section 19 of the PMLA, after the authority on the basis of material in his possession had reason to believe that t....... + More

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• 2024 (4) TMI 535
  Seeking release on ground of arrest of petitioner being illegal and in violation of principles laid down by the Hon ble Supreme Court in case of Pankaj Bansal v. Union of India [ 2023 (10) TMI 175 - SUPREME COURT] - In case of Pankaj Bansal, the Hon ble Supreme Court has inter alia held that the grounds of arrest must be communicated in writing to the person being so arrested through exercise of powers under Section 19 of PMLA, and failure to do so would render the arrest illegal. Challenge to arrest of the petitioner by Directorate of Enforcement on the ground that the arrest was in violation of Section 19 of Prevention of Money Laundering ....... + More

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• 2024 (4) TMI 476
  Money Laundering - Seeking grant of bail - appellant has been in custody for more than five years between the period - 2011 and 2018, in the predicate offence - HELD THAT:- Keeping in view the period of custody undergone, the present appeal is accepted and the appellant - Ram Binod Prasad Sinha is directed to be released on bail during the pendency of trial in ECIR no. 03/2018 registered for the offence(s) punishable under Section 4 of the PMLA, before the Court of Additional Judicial Commissioner-XVII-cum-Special Judge, CBI, Ranchi, subject to conditions imposed. The impugned judgment is set aside and the appeal is allowed.

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• 2024 (4) TMI 375
  Seeking grant of bail - Money Laundering - scheduled offence - proceeds of crime - delay in proceedings or not - HELD THAT:- The benefit of Section 436-A of the Code cannot be denied merely on the basis that allegations are serious. If the conditions are fulfilled, the Court is bound to give the benefit. Only the factors like the allegations, time required to be taken for conduct of the trial need to be considered. It is but natural for the Prosecution to take sometime for conduct of trial. At the same time, it is but natural that the Accused still remain in jail for a longer period. Ultimately, the Court has to balance in between the rights....... + More

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• 2024 (4) TMI 374
  Maintainability of writ petition - Money Laundering - proceeds of crime - Provisional Attachment Order - reasons to believe - impugned order is issued in consonance with the provisions of Section 5(1) of the Act of 2002 and more particularly the second proviso to Section 5(1) of the Act of 2002 or not - property acquired by the Petitioner No.1 vide the Deed of Sale dated 06.03.1997 could have been provisionally attached by the impugned order taking into account that the said property was acquired when the Act of 2002 had not come into force and more particularly when the provisions of the Act of 1988 was brought within the fold of the Act of....... + More

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• 2024 (4) TMI 174
  Seeking grant of anticipatory bail - Money Laundering - scheduled offence - Proceeds of crime - execution of Joint Venture Agreement and also a supplementary Agreement, according to which, a sum of Rs. 46 Crores was transferred to Suresh Narayan Vijaywargiya - existence of reasonable grounds to believe that applicant is guilty or not - seeking anticipatory bail on the ground that as Section 447 of the Companies Act was included in the schedule appended to the PMLA by way of amendment dated 19.4.2018 - HELD THAT:- A perusal of Explanation (ii) to Section 3, reflects that the process or activity connected with proceeds of crime is a continuing....... + More

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• 2024 (4) TMI 163
  Seeking grant of anticipatory bail - Money Laundering - bail sought on the ground that the applicant is 'sick' and 'infirm' within the meaning of proviso to Section 45 of the PMLA - HELD THAT:- In the present case, the applicant is aged about 83 years and seeking relief of anticipatory bail in terms of proviso to Section 45 of the PMLA. Proviso to Section 45 of PMLA provides that the person who is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special Court ....... + More

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• 2024 (4) TMI 117
  Money Laundering - seeking grant of bail - offence of fraud and forgery of valuable securities, etc. - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT:- It is not in dispute that applicant has no role in fraud, etc. committed by M/s Garvit Innovative Promoters Ltd. through BIKEBOT scheme. The applicant is neither named in 55 FIRs lodged by the investors nor charge-sheeted in those cases. After registration of ECIR by the Enforcement Directorate, the complicity of Mr. Dhirendra Pal Solanki had come at initial stage of investigation in the statement dated 22.11.2019 and 23.11.2019 of Sanjay Bhati (Chief Managing Director of M/s Gar....... + More

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• 2024 (4) TMI 116
  Money Laundering - illegal mining of granite, causing damages to human life and properties using explosives - scheduled offences - predicate offences - purchase from proceeds of crime or not - prosecution on the basis of presumption or not - HELD THAT:- Unconcluded predicate offence trial is not a bar for proceeding under the PMLA. The said grounds raised by A6 and A7 is not sustainable in view of the Supreme Court judgment in Vijay Madanlal Choudhary and others vs. Union of India and others [ 2022 (7) TMI 1316 - SUPREME COURT] . The Hon'ble Supreme Court after considering the object of the PMLA and the expression 'proceeds of crime&....... + More

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• 2024 (4) TMI 115
  Money Laundering - proceeds of crime - Provisional attachment of properties - Seeking to raise the attachment of the properties mortgaged to the petitioner bank - seeking declaration that G.Os.issued by Home Department, Government of Andhra Pradesh, to the extent of the properties mortgaged by M/s. Agri Gold Farm Estate India Private Limited to the petitioner Bank as illegal, arbitrary, unjust and violation of Article 300-A of the Constitution - HELD THAT:- In the instant case, the prime charge against the accused persons is that they have collected deposits from the depositors by making false promises of high returns by contravening Section....... + More

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• 2024 (4) TMI 114
  Seeking grant of bail - Money Laundering - money collected through cheating - beneficiaries of the money collected by GIPL from the investors on the pretext of supplying e-bikes to them - HELD THAT:- The applicant is the Director of M/s Mars Envirotech Limited and M/s Accord Hydraulics Private Limited. Preferential shares were purchased by ITV, PTPL and PBPL the sister concern of GIPL by transferring huge amount. The applicant was also made an Investment Advisor in Pental Technologies Private Limited, sister concern of GIPL with full authority and financial powers. The properties of the applicant have been attached by the Enforcement Directo....... + More

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• 2024 (4) TMI 76
  Money Laundering - Scheduled offences - whether the Non-Bailable Warrants (NBW) issued against the petitioner are liable to be quashed? - HELD THAT:- As recorded in order dated 05.12.2023, the petitioner had not appeared before the learned Trial Court. However, the exemption application filed on behalf of the petitioner was allowed for that day only by the link Court which was hearing the matters on the said day. An exemption application was again preferred by the petitioner on 05.01.2024, and the same was dismissed by the learned Trial Court considering his previous conduct of repeated absence from the Court and also the fact that he was no....... + More

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• 2024 (4) TMI 75
  Maintainability of petition - availability of alternative remedy of appeal - Money Laundering - scheduled offences - main contention raised by the petitioner was that he did not have a proper opportunity to place before the adjudicating authority certain documents which were at the relevant time not in his possession - HELD THAT:- If one goes through the scheme of the PMLA, sub-Section 1 of Section 26 provides for the filing of an appeal by any person aggrieved by an order made by the adjudicating authority, under the Act, before the Appellate Tribunal constituted under Section 25 therein. This appeal is to be filed within 45 days from the d....... + More

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Case Laws - SEBI

• 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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• 2024 (1) TMI 1022
  Termination of petitioner as a Depository Participant of CDSL[Central Depository Services] - Requirement of meeting the net worth and minimum turnover - petitioners being required to have a turnover of Rs. 3 crores as not adhered - According to CDSL, the termination is in lieu of SEBI-2018 Regulations and more particularly the amendment brought about to the said 2018 Regulations with effect from 23 February, 2022 to Regulation 35 by insertion of a proviso inter alia in regard to a stock broker requiring to have a net worth of Rs. 3 crores within one year from the date of notification of the 2022 amendment to the 2018 Regulations - HELD THAT:....... + More

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• 2024 (1) TMI 985
  Writ petitions impugning the Revocation Order within the territorial jurisdiction of Delhi High Court - Violation of SEBI s Minimum Public Shareholding Norms ( MPS Norms ) and disclosure requirements - SCN provided an option for settlement mechanism under the SEBI (Settlement Proceedings) Regulation, 2018 - SEBI passed a common Settlement Order as stated that certain monetary and non-monetary terms were imposed on the Appellants in the Settlement Order, and steps have been taken by the Appellants to implement the said Settlement Order - Settlement Order stood revoked and withdrawn by SEBI in terms of Regulation 28 of the Regulations of 2018 ....... + More

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• 2024 (1) TMI 734
  Rights of the minority shareholders - Restoration of the Writ Petition - SEBI's Role and Response to Complaints The case involves the petitioners, who are minority shareholders of Bharat Nidhi Ltd. (BNL), filing a writ petition against BNL and the Securities and Exchange Board of India (SEBI) for various alleged violations of securities laws. The petitioners claimed that SEBI had not provided them with the investigation report or relevant documents related to their complaints against BNL, despite them being shareholders. They argued that BNL, along with majority shareholders (respondent nos. 3 to 9), committed several illegalities and vi....... + More

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• 2024 (1) TMI 588
  Issue of the Non-Convertible Debentures (NCDs) without complying with the listing provisions - Liability of directors - 'officer in default' - HELD THAT:- Learned counsel for the appellants have made an attempt to distinguish the role as assigned to the appellants as Directors. But at present, we are not influenced by such submissions. In view of the above, the civil appeals stand dismissed. Pending applications stand disposed of.

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• 2024 (1) TMI 188
  Violation of Rule 19A of the Securities Contracts (Regulation) Rules 1957 - failure to disclose transactions with related parties and other relevant information which concerns related parties to SEBI - Precipitate decline in investor wealth and volatility in the share market due to a fall in the share prices of the Adani Group of Companies. Adani group - situation was purportedly caused by a report which was published on 24 January 2023 by an activist short seller , Hindenburg Research about the financial transactions of the Adani group. The Hindenburg Report and certain newspaper reports allege that some Foreign Portfolio Investments FPIs i....... + More

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• 2023 (12) TMI 915
  Determination of jurisdiction of High Court for SEBI violations - Violation of SEBI s minimum public shareholding norms and violation of SEBI s minimum public shareholding norms - Separate and independent settlement applications were also filed by respondent nos. 2 to 8 - Whether this court is the appropriate forum for deciding the present writ petitions and granting the reliefs as prayed for? - HELD THAT:- A perusal of Clause 2 of Article 226 indicates that the writ jurisdiction can be exercised by the High Court primarily in relation to the territories within which the cause of action, wholly or in part arises. However, the location of suc....... + More

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• 2023 (12) TMI 381
  Power of SEBI to initiation action against Chartered Accountant (CA) / Auditor of the company - misconduct dereliction of duties and abhorrence of due diligence while conducting statutory audit - auditor as directed that the certified copy of the order be forwarded to the Institute of Chartered Accountants of India ( ICAI ) and National Financial Reporting Authority ( NFRA ) for appropriate action against the appellants - HELD THAT:- The scope of inquiry by SEBI is very limited and is confined only to the charge of conspiracy of involvement of the appellant in the fraud, if any, and to take consequential action if there is connivance or cons....... + More

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• 2023 (12) TMI 318
  Power of SEBI to initiation action against Chartered Accountant (CA) / Auditor of the company - Charge of conspiracy and involvement in the fraud against CA firm - statutory auditor working against the fiduciary capacity - appellant is a leading firm of Chartered Accountants consisting of 14 partners and 250 accountants, article assistants and others - appellant was appointed as the joint statutory auditor - appellant had acted against the fiduciary capacity and instead of working in the interest of the shareholders of the company the appellant facilitated the scheme of cleaning up the books of account of the Company despite being aware of t....... + More

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• 2023 (12) TMI 295
  Request to place on record a compilation of documents - Writ petitions by minority shareholders - HELD THAT:- This Court is apprised of the fact that the proceedings are listed tomorrow (29 November 2023) before the High Court of Judicature at Bombay. Hence, it is not necessary for this Court to entertain the Special Leave Petition at this stage, particularly bearing in mind what has been observed in paragraphs 2 and 3 of the earlier order [ 2023 (12) TMI 241 - SC ORDER] which read as follows: 2 Since the impugned orders of the High Court are purely of an interlocutory nature, we are not inclined to entertain the Special Leave Petitions unde....... + More

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• 2023 (12) TMI 260
  Unlawful gains by fraudulent and manipulative strategy made by Reliance Company - responsibility of noticee no. 2 i.e. the Managing Director - violating Section 12A of the SEBI Act r/w Regulations 3 and 4 of the SEBI PFUTP Regulations - vicarious liability on both criminal and civil liability for contravention of the SEBI Act, Rules and Regulations - Liability against violations committed by the company - WTM issued directions to disgorge the unlawful gains of Rs. 447.27 crores along with interest @12% per annum and further prohibited the Company and the 12 entities from dealing in equity derivatives in the F O segment of the stock exchanges....... + More

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• 2023 (12) TMI 241
  Request to place on record a compilation of documents - As decided by HC [ 2023 (10) TMI 1173 - BOMBAY HIGH COURT] once it is the entitlement of the petitioners in law to receive such documents, they need to be furnished such documents, unless furnishing of these documents would stand prohibited in law, which is certainly not a situation in the present facts. HELD THAT:- All material which is directed to be disclosed by the High Court shall be used only for the purpose of the proceedings pending before the High Court and shall not be disseminated to any third party. Since the impugned orders of the High Court are purely of an interlocutory n....... + More

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• 2023 (12) TMI 186
  Violation of SEBI Act - validity of settlement orders, which according to the petitioners were patently illegal being beyond the authority and power of the SEBI to accept any settlement - petitioners in writ petitions are minority shareholders - case of the petitioners is to the effect that there is a severe prejudice caused to the petitioners due to several illegalities committed by BNL, at the instance of the majority shareholders who are respondent Nos. 3 to 9 - petitioners have contended that they are the victims of BNL not being listed on a recognized stock exchange, which has severely affected their interest as investors in BNL - befor....... + More

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• 2023 (12) TMI 38
  Default of appointment of additional director in the category of non-executive independent director by way of a board resolution - person above the age of 75 years as appointed by the board of directors - non-compliance of Regulation 17(1A) of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( LODR Regulations for short) - whether approval is required to be taken from the shareholders of the Company through a special resolution before a person who has attained the age of 75 years can be appointed? - HELD THAT:- The board of directors can appoint any person as an additional director who shall hold office up to the ....... + More

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• 2023 (11) TMI 67
  Share manipulation - unlawful gains through disguised trading - transaction pursuant to the alleged SMS - synchronized trades, self-trades and reversal of trades thereby creating a false appearance of trading and manipulation of the trading volumes in the scrip in question - violation of Section 12A of the SEBI Act r/w Regulation 3 and 4 of the SEBI PFUTP Regulations - combined shareholding had triggered the requirement of making an open offer under Regulations 10 and 11 of the SAST Regulations as these 5 noticees were acting in concert and had failed to make an open offer thereby violating the said regulations - orders restraining the appel....... + More

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• 2023 (11) TMI 66
  Front running trading activity by certain entities - fraud for the purposes of the PFUTP Regulations - Offence under SEBI - investigation found that the appellant Manish Chaturvedi was the key person who perpetrated the front running activity with the aid and assistance of other noticees including his parents (Laxmi Chaturvedi and Manohar Chaturvedi) - HELD THAT:- WTM and the AO correctly held that the trades of Anandilal Chanda and Anandilal Chanda HUF were based on the specific information obtained by Anandilal Chanda from Madhu Chanda, and more so in the absence of any plausible explanation by the appellants (the Chandas) of the peculiar ....... + More

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Case Laws - FEMA

• 2024 (4) TMI 660
  Validity of SAFEMA proceedings - petitioners submitted that the detention order have been quashed - HELD THAT:- As respondent No. 1 does not dispute the fact, that the detention order quashed by the Delhi High Court has attained finality, inasmuch as, the Apex Court has confirmed the quashing of the detention order passed by the Delhi High Court. Also does not dispute that in view of the aforesaid, the attachment of the properties under SAFEMA, will not survive. ORDER - The impugned order passed by the Competent Authority under Sections 7 and 19 of the SAFEMA as well as the order passed by the ATFP, are quashed and set aside - SAFEMA authori....... + More

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• 2024 (4) TMI 237
  Adjudicating Authority under FEMA - Case of the appellants that the show cause notice having been issued by the Special Director, Directorate of Enforcement, he is the Adjudicating Authority and the further proceedings are required to be conducted by him alone and not by the Additional Director - Single Judge dismissed the writ petitions holding that the case was transferred from the Special Director to the Additional Director in view of the enhancement of pecuniary jurisdiction and the same is well within the provisions of the Act of 1999. HELD THAT:- The persona designata is a person who is described as an individual, as opposed to a perso....... + More

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• 2024 (3) TMI 600
  Offence under FEMA/FERA - Levy of penalty - Review petition - proceedings against matter had gone up to the Hon ble Apex Court and the SLP had been dismissed - taking or refraining from taking action which had the effect of securing receipt of the full export value of the goods exported from the country of final destination had been delayed beyond the prescribed period in contravention of Section 18 (2) of the FERA read with notification dated 01.01.1974 issued by the Central Government - penalty imposed upon the appellants and the proforma respondent vide order dated 14.07.2009 (Annexure A-4), they were directed to make a pre-deposit of 10%....... + More

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• 2024 (3) TMI 502
  Violation under FERA - export proceeds were not realized - as alleged transactions A1 to A3 have contravened the provisions of Section 18(2) and 18(3) of FERA Act, 1973 for failing to take steps to realize bill value of export proceeds and A2 and A3 abetted A1 in sending said consignments towards exports and the export proceeds were not realized, which is in violation of the said provisions of FERA - According to A1, the signatures on G.R.Forms were forged by A2, as such, she cannot be held responsible for the said exports. Export transactions are apparent and they were done on behalf of A1 s firm with the involvement of A2. A3 as the Custom....... + More

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• 2024 (3) TMI 19
  Adjudication made under FEMA Act - Non issuance of show cause notice as well as non giving of an opportunity of being heard within the meaning of Section 16 of the Act r/w Rule 4(1) and 4(3) of the Rules certainly would amount to violation of principles of natural justice - as decided by HC [ 2023 (12) TMI 914 - MADRAS HIGH COURT] notice as contemplated under the Act as well as the Rules as discussed herein above have been served on these noticees and Merely because at the time of serving the notice, these noticees were not available at the address at Bengaluru would not ipso facto entile them to claim immunity that the notices served on the....... + More

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• 2024 (2) TMI 1257
  Violation under FERA - charge u/s. 56 of FERA - Company being in Liquidation - Offences by companies u/s 68 of FERA - As submitted Company being in Liquidation and a Provisional Liquidator having been appointed for it, only the Provisional Liquidator can represent the Company in the proceedings pending before the learned ACMM and not the petitioner herein. Whether the charge against the Company can be framed through the petitioner? - HELD THAT:- As per Section 305 CrPC Procedure when corporation or registered society is an accused would show that where the accused person is a company, it may appoint a representative for the purpose of the tr....... + More

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• 2024 (1) TMI 337
  Power of search and seizure conferred on the Directorate of Enforcement as per FEMA - validity of seizure/confiscation made by the respondents - seeking a direction to return/release the money, currency illegally confiscated/seized - HELD THAT:- The provisions of Section 132B of the Income Tax Act, 1961 inter alia provides for application of seized and requisitioned assets which provides that the assets seized may be dealt with in the manner provided therein, whereby, the amount of any existing liability and the amount of liability determined on completion of the assessment may be recovered out of such assets, however, such power is, thereaf....... + More

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• 2023 (12) TMI 914
  Adjudication made under FEMA Act - Non issuance of show cause notice as well as non giving of an opportunity of being heard within the meaning of Section 16 of the Act r/w Rule 4(1) and 4(3) of the Rules certainly would amount to violation of principles of natural justice - HELD THAT:- The mode of service of notice has been clearly demonstrated at Rule 14, i.e., 3 methods, namely 14(a), 14(b) and 14(c). At least Rule 14(b) and 14(c), the notices have been served on these noticees in their last known address or the address where they carried on business last. Merely because at the time of serving the notice, these noticees were not available ....... + More

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• 2023 (12) TMI 787
  Offence under FEMA - petitioner had made foreign remittances to different foreign companies under the guise of payments against the bogus import of services and that these amounts are held outside India by the related foreign companies of the petitioner - petitioner is engaged in the business of providing unsecured short-term loans to its customers/borrowers in India via its Digital Application based platform called the CashBean - As contended that the petitioner had engaged a Hong Kong based Company, for procurement of an IP licence and had entered into a Software Licence Agreement with it for providing IP and Digital Lending Software Licen....... + More

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• 2023 (12) TMI 786
  Offence under FEMA - bidding process for the IPL franchise organised by the BCCI - arrangement of the flow of funds by Respondents was made to route the investments through Mauritius as the funds flowing into India from UK was not permissible - maximum penalty imposed - Special Director indicates that although satisfaction in respect of contravention of the provisions of the FEMA has been recorded, there is no explanation or any discussion in respect of the basis on which maximum penalty has been imposed - Tribunal has recorded a that an exorbitant penalty has been imposed upon the individuals arrayed without recording any findings on the sp....... + More

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• 2023 (12) TMI 442
  Validity of enquiry / investigation proceedings - taking cognizance of the complaint - Investment in foreign companies - violation of Sec.4 of FEMA - Competent Authority passed orders not to seize the assets of the petitioners - as alleged assessee subscribed to 70.0 lakhs shares in certain M/s. Silver Park, a Singapore based company, registered as per the laws of Singapore, and that he had later transferred those shares to his wife and two children outside India. Adjudicatory Authority in his show cause notice has indicated that they would be proceeded against u/s 13(2) and enquiry into this is underway - Adjudicating Authority had issued a....... + More

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• 2023 (11) TMI 480
  Validity of order of forfeiture of properties u/s 7 of SAFEMA consequent to revocation of the detention order passed under COFEPOSA - as argued that as detention order passed u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA] has been subsequently revoked/withdrawn as such SAFEMA proceedings would become non est and untenable HELD THAT:- SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto as such activities were having a deleterious effect on the national....... + More

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• 2023 (11) TMI 315
  Recovery of penalty imposed on the respondent - Validity of insolvency notice issued to the respondent - interpretation of statute - words creditor, debt and debtor as defined under Section 2A and 2B of the Presidency Town Insolvency Act should be given a restricted conventional meaning - term decree or order appearing in Section 9(2) of the Presidency Towns Insolvency Act 1909 would mean only a decree or order of a civil Court or would it include any order for payment of money passed after an adjudicatory process? - maintainability of application under Section 9(5) - Enforcement Directorate is competent to initiate proceedings in insolvency....... + More

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• 2023 (10) TMI 1118
  Proceedings initiated u/s 56 of FERA - non issue of SCN - Violation of principle of natural justice - HELD THAT:- No complaint can be filed unless the person accused of such offence has been given an opportunity of showing that he has such requisite permission. It is clear that from the facts of this case and also not disputed by Respondent that there is no such show cause notice which was issued and served on the fresh address of the petitioner at Gurugram. That apart, it is pertinent to note that though the notice issued under proviso to Clause (ii) of sub section (2) of Section 61 FERA was not served upon the petitioner, the demand notice....... + More

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• 2023 (10) TMI 891
  Foreign contribution utilized for undesirable purposes - Suspension of certificate - seeking Release/permit the Petitioner to utilize 25% of the total foreign contribution amount/funds held by the Petitioner u/s 13(2)(b) of the Foreign Contribution (Regulation) Act - HELD THAT:- Section 13(2) of the FCRA permits utilization of foreign contribution which is in custody of the person whose certificate has been suspended. There is no occasion to restrict the term his custody only to the current account. The amounts which are held in fixed deposits or in government bonds etc. are also unutilized foreign contributions which can be made available t....... + More

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• 2023 (10) TMI 377
  Offence under FEMA - gold bullion of 3773.52 gm. was seized along-with other articles like electronic devices mobile phones, hard disk etc during search operations - HELD THAT:- The provisions of Section 37 of the FEMA read with Sections 132 and 132B of the Act of 1961 including its proviso clauses clearly speak that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorized officer shall make a note or inventory of such stock-in-trade of the business. Further, where the person concerned makes an application to the AO within thirty days ....... + More

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• 2023 (10) TMI 292
  Stay of demand / waiver of pre-deposit - Levy of penalty - Contravention of Section 18(2) of FERA - failure to realize export proceeds to the tune of US $ 2,03,925/- - Penalties Levied - Tribunal has waived 60% of the total penalty calling upon the appellant to deposit only 40% thereof, for which a period of 30 days was granted - plea for full waiver of mandatory, statutory pre-deposit and non-compliance with an interim order of the Tribunal - HELD THAT:- Tribunal has, in waiving 60% of the penalty, and directing deposit of only 40%, taken note of all contentions of the Appellant, including the hardship projected. In fine, a balance has been....... + More

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• 2023 (10) TMI 118
  Detention order - whether the inordinate delay of thirty years in the execution of the detention order is explained by the concerned authorities? - detention order indicates that the detaining authority has relied upon the search and seizure proceedings u/s 34 of the Foreign Exchange Act 1973 ( FERA ) - HELD THAT:- The detention under the COFEPOSA Act is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing from smuggling goods, or abetting smuggling goods, or engaging in transporting or concealing or keeping smuggled goods or dealing with the same or....... + More

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• 2023 (9) TMI 1102
  Offences committed under the repealed FERA Act - prosecution for the offences punishable as committed prior to the repeal of FERA - purposes of the prosecution of offences punishable under Sections 56 and 57 of FERA - HELD THAT:- What is material here is sub-section (4) of Section 49 of FEMA, which provides that subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Sub-section (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior....... + More

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• 2023 (8) TMI 60
  Proceedings under FEMA - receiving foreign exchange in lieu of issuance of equity shares/share warrants - whether no approval has been granted by FIPB? - HELD THAT:- As clearly transpires without any semblance of doubt that the custodian general of foreign exchange is the Reserve Bank of India and any permission with regard to inflow of foreign exchange would definitely have to have the permission of the Reserve Bank of India. In the case on hand, the permission is for receiving foreign exchange in lieu of issuance of equity shares and for the said purpose, the appropriate authority to grant permission is FIPB. Newbridge, the foreign investo....... + More

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Case Laws - Service Tax

• 2024 (4) TMI 1041
  Refund of Service Tax - tax paid as a mistake of law - applicability of time limitation as per Section 11B of the Act, 1944 - HELD THAT:- This question came up for consideration before the Delhi High Court in HIND AGRO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2007 (8) TMI 215 - DELHI HIGH COURT ]. After considering the judgment of the Hon ble Supreme Court in case of Mafatlal Industries Ltd. [ 2002 (11) TMI 707 - CEGAT, MUMBAI] , the Delhi High Court held that the judgment of Mafatlal Industries Ltd. nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erroneously was required to be made under ....... + More

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• 2024 (4) TMI 1040
  Payment through CENVAT credit not accepted - supporting documents furnished were also not referred - HELD THAT:- There are no doubts as to the availability of CENVAT credit in the books of the appellant. But however, the lower authority has brushed aside the request of the appellant which is borne on record, but it was incumbent upon the original authority discharging the role of an adjudicating authority to verify/cross verify and then give proper findings through speaking order as to whether the claims of the appellant were acceptable or not. It is precisely the case of the appellant that they had discharged service tax liability to a larg....... + More

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• 2024 (4) TMI 1039
  Interest on delayed refund - deposit of whole amount of service tax demanded, under protest - HELD THAT:- Admittedly, in this case, the appellant has made the pre-deposit of whole of the demand of service tax although under protest, but the same was not required to be paid by the appellant to file appeal before this Tribunal - In that circumstances, the appellant is entitled to claim the interest on 7.5% of the demand of service tax deposited (Rs.7,90,08,905/-) on 28.12.2018 till its realization i.e. 01.09.2022. In terms of the decision of this Tribunal in the case of M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS SERVICE TAX, ....... + More

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• 2024 (4) TMI 1038
  Non-payment of service tax - Valuation - Reimbursements of expenses - Pure Agent - 'Freight Reimbursed' and 'Miscellaneous Expense Reimbursed' - Whether the services provided under two separate agreements (Handling Agent Agreement and Transport Agreement) should be classified independently or merged as a single clearing and forwarding agent service for tax purposes. - Reverse Charge Mechanism - extended period of limitation - HELD THAT:- The dispute in this case is for the inclusion of freight amount in the value of C F service for which a separate agreement has been entered into with the principal, which we do not consider l....... + More

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• 2024 (4) TMI 1013
  Non-payment of service tax - Works Contract Service - Service receiver had already discharged the service tax liability - demand raised on the basis of third party information i.e. data revealed from ITR/Form 26-AS from Income Tax Department - Extended period of Limitation - HELD THAT:- It is found from the records that the service receiver PVVNL deposited the entire service tax amount on the works contract services provided by the Appellant. This Tribunal in the case of NAVYUG ALLOYS PVT. LTD. VERSUS CCE C, VADODARA-II [ 2008 (8) TMI 100 - CESTAT AHEMDABAD] has held that once tax is already paid on the services, it was not open to the Depar....... + More

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• 2024 (4) TMI 1012
  Interest liability on delayed payment of tax - seeking waiver of interest since the payment of service tax was paid under the amnesty scheme - appellants have incurred expenditure towards the Import of Services such as CMMI Course Development Fee/CMMI Certified Lead appraiser per appraisal fee/CMI Institute per appraisal fee etc from CMMI Institute, USA for the services received from them - Reverse Charge Mechanism - Rejection of refund - HELD THAT:- The appellants have paid the Service Tax allegedly on being informed about the clarification issued by CBIC. So called clarification, appears but an Amnesty Scheme notified for the benefit of de....... + More

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• 2024 (4) TMI 967
  Extended period of limitation - Suppression of facts or not - Levy of Service Tax - health and fitness service - providing education to patients regarding Yoga - donation received in respect of yoga camp / residential Yoga camp - Donation is related to Education or Health and fitness service or not? - penalty - benefit of Section 80 of FA - it was held by CESTAT that it is observed that demand for the period 01.10.2006 to 31.03.2007 needs to be recomputed after reconciling the amounts received by the appellant during that period with the accounts of appellant and the certificate dated 21.01.2012 of the Chartered Accountant (Anil Ashok Associ....... + More

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• 2024 (4) TMI 966
  Extended period of Limitation - suppression of facts or not - Classification of services - supply of tangible goods service or not - deemed sale or not - outward liability towards non-scheduled air transport services under section 73(2) of Finance Act, 1994 - import of aircraft from Non-resident entity on payment of Lease rental, under section 73(2) of Finance Act, 1994 - Interest and Penalty - HELD THAT:- The Department has initiated investigation against the appellant for the first time in June 2010, on the ground that the appellant should discharge its tax liability under the category of supply of tangible goods for use services . However....... + More

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• 2024 (4) TMI 965
  Refund of CENVAT Credit - Discretion Power of the refund sanctioning authority - denial on the ground that improper description of the input services noted in the invoices of the Appellant/exporter of services - HELD THAT:- On account of legal services availed as input services, no invoices were raised showing the services as legal services and on the other hand copy of G.A.R.-7 Challan evidencing payment of Service Tax clearly indicates that the said payments were made under Business Auxiliary Services , Cab Operators Services , Sponsorship Services , etc. This being the ground for refusal, it is not to understood as to why the question of ....... + More

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• 2024 (4) TMI 964
  Non-payment of service tax - CHA Service - Business Auxiliary Services - reimbursement expenses received - failure to discharge service tax on the incentives / brokerage received by them from steamer agents / shipping lines - demand of differential duty with interest and penalty. Differential service tax demand raised by the Department under CHA Services - HELD THAT:- The issue as to whether the reimbursable expenses has to be included in the taxable value is settled by the decision of the Hon'ble Apex Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPR....... + More

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• 2024 (4) TMI 963
  Levy of Service tax - renting of immovable property service - religious body or not - assessee has paid the service tax along with interest under VCES - period from 01.10.2008 to 30.06.2012 - penalty - HELD THAT:- The assessee fits in to the category of religious body . As per the definition of Renting of immovable property service, such service rendered by a religious body or to a religious body is excluded from the levy of service tax. The assessee herein is not liable to pay service tax under the category of renting of immovable property services up to 30.06.2012. Therefore, the demand for the period prior 30.06.2012 cannot be sustained a....... + More

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• 2024 (4) TMI 912
  Recovery of service tax alongwith interest and penalty - works contract service provided by the petitioner between 01.10.2016 to 30.06.2017 - HELD THAT:- The issue is now covered by the decision of the Division Bench of the Principal Seat in M/S. RAJU CONSTRUCTION, REP. BY ITS MANAGING PARTNER, R. SURESH BABU, M/S. VENKATESWARA ENGINEERING CONSTRUCTIONS, REP. BY ITS MANAGING DIRECTOR, MADESAN SIVAPRAKASAM, M. VEDIAPPAN, V. VENGAN VERSUS THE GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI, THE SENIOR INTELLIGENCE OFFICER, O/O. DIRECTORATE GENERAL OF GST INTELLIGENCE, TRICHY REGIONAL UNIT, THE GOVERNMENT OF TA....... + More

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• 2024 (4) TMI 911
  Seeking refund of accumulated Cenvat credit - input services or not - Judicial Discipline - The department had not accepted the judgement in the case of Paul Merchants and filed a Civil Appeal before the Supreme Court - HELD THAT:- The question of judicial discipline was examined by a three member bench of the Supreme Court in UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [ 1991 (9) TMI 72 - SUPREME COURT ]. The Assistant Collectors in that case flouted the orders of the Appellate Collector on the ground that the order of the Appellate Collector were not acceptable to the department. The assessee filed a Writ Petition before the B....... + More

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• 2024 (4) TMI 910
  Levy of service tax - Works Contract Service - availment of Composition Scheme - GTA service - CENVAT Credit in terms of Rule 6(3) of CCR, 2004 - works Contract executed on or after 01.07.2012 under other works contract - Credit denied on the ground that the documents prescribed under Rule 9(1) of the CCR were not submitted - suppression of facts or not - extended period of limitation. Works Contract Service - availment of Composition Scheme on 25.01.2008 - HELD THAT:- W.e.f. 01.06.2007, the appellant has been discharging service tax liability on the said service under the Composition Scheme . In the absence of any laid down procedure under ....... + More

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• 2024 (4) TMI 909
  Liability of appellant to pay service tax - vague SCN - SCN does not mention the category of service under which the demand has been proposed by the Department - HELD THAT:- On perusal of the Show Cause Notice as well as the order passed by the Adjudicating Authority and the Commissioner (Appeals), it is not found as to what is the category of service alleged to be rendered by the appellant. Merely because, the appellant received some amounts from M/s. Neyveli Lignite Corporation, it cannot be said that they have rendered service. In the Show Cause Notice, it is stated that the appellant rendered the activity of AMC of North Dump Yard, Affor....... + More

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• 2024 (4) TMI 908
  Recovery of service tax alongwith interest and penalty - non-payment of service tax by suppressing the value of taxable service. Demand confirmed for the reason that the appellant had accepted their liability for payment of service tax, and they had disputed the demand only on the account of quantification, in respect of which both the authorities have concluded that the appellant had failed to substantiate their claim by producing the relevant records for verification. HELD THAT:- The appellant has during the period prior to 16.06.2005, issuing invoices, claiming the service tax from their service recipient. On Invoice No 13-18/2005-06 date....... + More

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• 2024 (4) TMI 907
  Non-payment of service tax - suppression of value of taxable service provided - demand confirmed for the reason that the appellant had accepted their liability for payment of service tax, and they had disputed the demand only on the account of quantification, in respect of which both the authorities have concluded that the appellant had failed to substantiate their claim by producing the relevant records for verification. HELD THAT:- The major deduction which has been claimed by the appellant from the gross value of taxable services is on the account of services provided by them before the same became taxable, specifically the services under....... + More

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• 2024 (4) TMI 906
  Liability of sub-contractor to pay service tax - main contractor discharges tax on the gross value - Extended period of limitation - suppression of facts or not - penalties - HELD THAT:- After issue of the Circular No. 96/7/2007-S.T. dated 23.08.2007, there is no ambiguity regarding the liability of a sub-contractor to pay Service Tax even in cases where the main contractor pays Service Tax on the gross value. The demand involved in this Notice pertains to the period from 2007-08 to 2011-12 i.e., after the issue of the Circular mentioned hereinabove. Thus, the submission of the appellant that they were not aware of the liability to Service T....... + More

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• 2024 (4) TMI 905
  Invocation of Extended period of Limitation - Suppression of facts or not - Classification of services - real time courses provided by the Appellant - Online information and data base access and/or retrieved service (OIDAR service) or commercial training or coaching service? - HELD THAT:- On perusal of the facts in the instant case, we note that the appellant was asked to submit copies of their Balance Sheet for the period 2007 2008, along with the details of the payments collected from clients/members on account of each of the services provided by them from 1.4.2007 to Sept 2008 and list of members and clients from whom such payments had be....... + More

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• 2024 (4) TMI 864
  Classification of services - transporting coal from one location to another - GTA services or cargo handling service - reverse charge mechanism - HELD THAT:- When WCL required a service provider to move the coal from one location to another and for this purpose, engaged the service of the appellant, the essential part of the contract is of transportation. Loading and unloading are incidental to it. Loading and unloading per se are of no use except when they are in conjunction with the transportation. The intention of the WCL is to transport coal and in the process, it also gets loaded on to the truck and unloaded at the destination. While th....... + More

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Case Laws - Central Excise

• 2024 (4) TMI 1037
  Denial of irregularly availed CENVAT Credit - allegation on the ground that there was no manufacturing facility in factory premises and appellant was engaged only in paper transactions - cross-examination of statement of witnesses not allowed - HELD THAT:- In this case the appellant has intimated suspension of their manufacturing activities vide letter dated 10.07.2008 and thereafter surrendered their registration on 01.08.2008 and whole of the investigation have been started thereafter. Moreover, the appellant has procured inputs from various dealers, manufacturers and suppliers and made payments through account payee cheques and investigat....... + More

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• 2024 (4) TMI 1036
  Exemption for captive consumption - benefit of exemption N/N. 67/95 dated 16.3.1995 - Rectified Spirit - excisable goods or not - covered by the term final product or not - HELD THAT:- This Bench has considered almost identical issue, in their own case to hold that the denial of exemption Notification No.67/95 was incorrect, for the reasons discussed therein, by also relying upon an earlier order of Chennai Bench in the case of Sri Ambika Sugars Ltd. [ 2014 (11) TMI 919 - CESTAT CHENNAI] has held The Tribunal in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [ 2014 (11) ....... + More

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• 2024 (4) TMI 1011
  100% EOU - Levy of Excise Duty on wastages - shortages are to be considered as handling loss as claimed by the appellant - extension of benefit of no duty or liable to pay duty on these admitted losses/shortages - Time Limitation - HELD THAT:- From the N/N. 23/2003-CE dated 31.3.2003 and the provisions at para 6.8 of the Foreign Trade Policy clearly mentions that the DTA clearances include Scrap/waste/remnants arising out of production process or in connection therewith may be sold in DTA, as per SION notified under Duty Exemption Scheme, on payment of concessional duties as applicable, within overall ceiling of 50% of FOB value of exports. ....... + More

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• 2024 (4) TMI 1010
  Classification of goods - agglomerate plastic granules - classifiable under Heading 39159029 as waste, paring and scrap of plastic, or as polymers of ethylene in primary form under 39019090? - availability of concessional rate of 5% under Notification No. 21/2002-Cus., dated 01.03.2022 - HELD THAT:- The chapter heading 3915 does not apply to waste, parings and scrap of a single thermoplastic material transform into primary form and for such material the appropriate heading is 3901 to 3914. A perusal note would indicate that the terms primary form applies to lumps, powder and granules. The chemical examiners report clearly holds that the good....... + More

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• 2024 (4) TMI 1009
  CENVAT Credit - inputs and input services used for the generation of electricity which, later on, is cleared to its sister unit situated at Urse free of cost - reversal in terms of provisions of Rule 6(3A) of Cenvat Credit Rules, 2004 with interest and penalty - HELD THAT:- In the case in hand there is no such allegation about sale of electricity in the show cause notices but authorities below have proceeded on the premise that during this period the appellant had sold the electricity to MSEDCL also. As per records, during the period in issue the electricity was supplied only to the sister unit at Urse and that too free of cost and in an ide....... + More

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• 2024 (4) TMI 1008
  Recovery of amount of CENVAT Credit short reversed/not paid by the Noticee alongwith interest and penalty - exempt goods or not - benefit under Notification No. 12/2012-CE dated 17.03.2012 (Sr. No. 179) - assessment in case two options available - revenue neutrality - Extended period of Limitation - HELD THAT:- The amount of CENVAT credit available on the inputs and the amount which needs to be paid as duty on the final products cannot determine whether the goods are dutiable or exempted. If, duty is paid, even if it is one rupee, the goods are duty paid and it is immaterial how much, if any, CENVAT credit on inputs or input services was ava....... + More

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• 2024 (4) TMI 962
  CENVAT Credit - mentioning of wrong address in the invoice - HELD THAT:- The orders dated 22.08.2019 and 20.08.2020 are hereby quashed and set aside. The matter is remanded back to the adjudicating authority-Additional Commissioner of CGST and Central Excise who shall decide the proceedings on remand, after giving fullest opportunity to the petitioner, without in any way being influenced by this order and on merits. None of the findings and observations recorded in this order would in any manner influence or prejudice either side. Application disposed off.

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• 2024 (4) TMI 961
  CENVAT Credit - Input service distribution - credit distributed by M/s. Parle Biscuit Private Ltd. i.e. inputs service distributor to the appellant, a contractual manufacturer/job worker, for the period prior to 01.04.2016 is in accordance with Rule 7 of CENVAT Credit Rules, 2004 as prevailing at the relevant time or not - HELD THAT:- Prior to 01.04.2016 also, Rule 7 allows distribution of credit to its manufacturing units. Here the words used are its manufacturing units which, in absence of anything contrary, cannot be said to be limited to manufacturing unit owned by Parle Biscuits only. The first principle of interpretation is that the wo....... + More

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• 2024 (4) TMI 960
  MODVAT Credit - proper duty paying documents or not - challans-cum-invoices issued by M/s. SAIL, do not contain the duty payment details - HELD THAT:- N/N. 15/1994-C.E.(N.T.) dated 30.03.1994 provides relaxation to avail MODVAT Credit on the basis of challans-cum-invoices issued by stockyards of manufacturers subject to the condition that such challans-cum-invoices shall contain all the duty payment particulars. In the present case, it is alleged that the challans-cum-invoices based on which the appellant availed credit did not contain the details of payment of duty and accordingly, the MODVAT Credit has been disallowed. There is no allegati....... + More

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• 2024 (4) TMI 959
  Non-payment of duty fixed for the month of March 2000 - Compounded Levy Scheme - invoking the proviso to Section 11A of the Central Excise Act, 1944 alleging suppression of fact - extended period of limitation - HELD THAT:- It is observed from the Show Cause Notice that the demand has been raised by invoking the provisions of Section 11A of the Act and penalty has been imposed for contravention of the provisions of Section 11A on the ground that the appellant had mala fide intention to evade the payment of duty. The appellant has declared the non-payment of duty for the month of March 2000 in the return filed by them. They have not suppresse....... + More

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• 2024 (4) TMI 958
  SSI Exemption - clubbing of clearances of four units - dummy unit created for the purpose of claiming benefit of SSI exemption - Confiscation of the goods and imposition of redemption fine - HELD THAT:- Though the units were jointly managed by way of common employee, common workers, common marketing set-up etc., the benefit of SSI exemption notification was claimed individually by each of one of them. M/s Precision Equipment Co. was started in the year 1991 as proprietary firm under the proprietorship of Shri Rajubhai Jaisinghani. Later on, one by one other firms were created. Another allegation of the Revenue is that all the units were so m....... + More

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• 2024 (4) TMI 951
  Violation of principles of natural justice - opportunity of personal hearing, not provided to petitioner - exemption for the services provided to the Government - attachment of Bank Accounts of petitioner - HELD THAT:- This issue has already been decided by the Division Bench of the Principal Seat of this Court in W.P.No.24996 of 2019, dated 30.11.2022, wherein, similar contractors are directed to approach the appellate authority and it was held that wherever the Orders-in-Original have been passed, the respective petitioners are given liberty to file statutory appeal before the Appellate Authority subject to the compliance of the other requ....... + More

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• 2024 (4) TMI 904
  Maintainability of petition - alternative appeal - waiver of pre-deposit - seeking the petitioner be relegated to appeal jurisdiction under Section 86 of the Finance Act, 1994 and direct the Tribunal to grant waiver of pre-deposit - HELD THAT:- An alternative efficacious remedy is available to the petitioner wherein, the petitioner has already filed his appeal. The very fact that the petitioner has already filed the appeal, precludes this Court from now examining this matter in writ jurisdiction. The petitioner cannot be allowed to be sitting on the fence. The filing of this petition is nothing but an after thought as the petitioner wants to....... + More

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• 2024 (4) TMI 903
  CENVAT Credit - inputs - respondent does not possess any furnace to use such inputs in or in relation to manufacture of final product - whether for the purpose of eligibility of Cenvat Credit, the classification of the input is irrelevant? - burden of proof upon the respondent to establish that the goods covered under Central Excise Tariff sub-heading No.72044100 procured by the respondent treating them as `inputs has been used in the manufacture of finished products without requiring a furnace in the factory - HELD THAT:- As a general proposition, the Tribunal may be right that the classification issue will not be a relevant issue for the p....... + More

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• 2024 (4) TMI 902
  CENVAT Credit - removal of capital goods as waste and scrap - waste and scrap of fire brick after use in the kiln during the period 2010-11 (upto February 2015) - Rule 3 (5A) of Cenvat Credit Rules, 2004 - HELD THAT:- Rule 3 (5A) of Cenvat Credit Rules, 2004, though provides that in case of removal of capital goods as waste and scrap, the assessee is required to pay the duty after reducing 2.5% per quarter for the period of use of capital goods. However, the appellant have taken the support of decision of BIRLA CORPORATION LTD. VERSUS COMMR. OF C. EX., RAIPUR [ 2002 (11) TMI 239 - CEGAT, COURT NO. IV, NEW DELHI] which deals with the provisio....... + More

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• 2024 (4) TMI 901
  Reversal of CENVAT Credit - Interest liability on Reversal - reversal of proportionate input credit relating to the exempted goods cleared every month properly during the periods from November 2007 to January 2011 and from November 2008 to December 2010 - Rule 6(3)(a) and Rule 6(3)(ii) of CENVAT Credit Rules - HELD THAT:- The appellant s claim that sufficient balance was available in CENVAT Credit account to reverse the credit and no pecuniary benefit was derived in any manner has not been contested by Revenue. Under the CENVAT credit scheme there was no co-relation of the raw material and the final product, and the manufacturer is entitled ....... + More

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• 2024 (4) TMI 900
  Refund of accumulated credit - appellant who pays service tax under reverse charge mechanism can also be called output service provider or not - manufacturer of goods having nil tariff rate of duty is eligible for Cenvat Credit at all. Refund claim - HELD THAT:- The comprehensive coverage of MODVAT was achieved by 1996-97 by introduction of Central Value Added Tax (CENVAT).Later CENVAT scheme also allowed credit of services and the basket of inputs, capital goods and input services could be used for payment of both central excise duty and service tax. Thus, it does not stand to reason, for denying input tax credit and its refund in certain s....... + More

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• 2024 (4) TMI 899
  Short payment of Central excise duty - reversal of irregular credit - revenue neutrality - difference in book stock and physical stock - Proof of replacement of goods - Extended period of Limitation. Short payment of duty - stock transfer of goods to their sister concern - HELD THAT:- Demand has been raised on the appellant holding that certain elements of cost have not been added while ascertaining the assessable value. It is observed that the department has not adduced any evidence to the effect that which cost was not included and why such cost is to be included. In the absence of any specific cost not added in the assessable value by the....... + More

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• 2024 (4) TMI 860
  Reversal of proportional CENVAT Credit - manufacture as well as trading activity - demand on the ground that the sale of tyre tube and flap in set to their depot is a trading activity which as per amendment made on 01.04.2011 such trading activity is a exempted service accordingly proportionate credit is required to be reversed - HELD THAT:- The activity of selling the tyre duly fitted with tube and flap whether a trading activity or otherwise is pending before the Hon ble Supreme Court in appellant s own case in SLP (CE) No. 34310-34311/2011 wherein two orders were issued by the Hon ble Supreme Court dated 14.10.2011 and 08.11.2011. In view....... + More

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• 2024 (4) TMI 859
  Refund claim - rejection on the grounds of unjust enrichment - requirement to be credited to Consumer Welfare Fund constituted under Section 12C of Central Excise Act 1944 - HELD THAT:- It is quite evident that the appellant has categorically stated in the letter that they are charging the central excise duty from their customer, while maintaining the selling price at the same level by increasing the discount given from 40% to 52.10%. Undisputedly appellant himself admits that they are charging the central excise duty from their customers. That being so the burden of duty paid has been passed on the customer. The reason for giving additional....... + More

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Case Laws - Vat / CST

• 2024 (4) TMI 1035
  Penalty for diversion and unlawful sale of foreign liquor - Applicability of the relevant rule for imposition of penalty - whether it is the rule that existed when the violation occurred during the license period of 2009-10 or the rule that was substituted in 2011 when proceedings for penalty were initiated? - HELD THAT:- The operation of repeal or substitution of a statutory provision is thus clear, a repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution. This principle is subject to specific statutory prescription. Statute can enable the rep....... + More

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• 2024 (4) TMI 957
  Validity of assessment order - Levy of penalty u/s 53(1)(ii) of the AP VAT Act - wilful evasion of tax or not - SCN also do not categorically mention that it was a case of wilful evasion of tax - SCN barred by time limitation - Section 21(4) of AP VAT Act, 2005 - HELD THAT:- As seen from the show cause notice dated 24.06.2021 there is a mention of under declaration of 14.5% purchases during the year 2016-17. It is also mentioned that penalty proceedings would also be issued separately as the dealer was found to have committed offence under the provision of AP VAT Act. In the revised show cause notice also it is mentioned that the petitioner ....... + More

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• 2024 (4) TMI 956
  Interest on delayed refund - relevant period for calculation of refund - Section 42(1) of the DVAT ACT, 2004 - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for money payable for interest upon money due from defendant to the plaintiff is 3 years and the time from which the period begins is when the interest becomes due. The petitioner would be entitled to interest for a period of three years immediately preceding the filing of the subject petition till the date payment was made of the petitioner. The rate of interest applicable would be @ 6 % per annum in ....... + More

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• 2024 (4) TMI 955
  Time limitation for passing assessment order - Classification of goods - Polymer Nylon Chips - classifiable under Entry 83 Schedule-II(B) of the Uttarakhand Value Added Tax Act, as Plastic Granules or not - whether re-assessment, under Section 29(4) of the Act could be made on the change of opinion, especially keeping in view that the same records had already been scrutinized by the Assessing Authority? Time limitation for passing assessment order - HELD THAT:- As per Section 29(7) of the U.P. Commercial Tax Act, reassessment can be made within a period of 8 years after expiry of the Assessment Year. In the present case, as per the Uttarakha....... + More

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• 2024 (4) TMI 898
  Prayer for listing the review petitions in open Court/oral hearing - Taxability - gutka/gutkha/guhtka - appellants argued that state legislatures were not empowered to levy sales tax on those articles, in view of the provision in the Constitution enabling the Union to levy additional duties of excise, and further that in any case, the rate of state tax cannot exceed the limit prescribed by the Central Sales Tax Act, 1956. HELD THAT:- Prayer for listing the review petitions in open Court/oral hearing is rejected - no case for review of the common judgment dated 4-5-2023 is made out. The review petitions are, accordingly, dismissed.

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• 2024 (4) TMI 857
  Interest on delayed refund - relevant time for calculation of interest - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for money payable for interest upon money due from defendant to the plaintiff is 3 years and the time from which the period begins is when the interests become due. In terms of Section 30 (4) of Delhi Sales Tax Act, 1975, interest becomes due and payable on delayed refund on expiry of 90 days from the date of making the claim under Sub-Section 3. Accordingly, the period of limitation for claiming interests on the delayed payment would be t....... + More

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• 2024 (4) TMI 815
  Seeking grant of anticipatory bail - bailable offence or not - failure to make payment of tax - wilful attempt to evade any tax or payment of any tax - Section 74(2) of the MVAT Act - HELD THAT:- Under Section 76 of the MVAT the offences under that Act were bailable. Therefore, question of grant or refusal of anticipatory bail would arise only if Sections 406 and 420 of the I.P.C. are made applicable in the present case. The F.I.R. and the investigation carried out so far reveals that, there was evasion of tax or non payment of tax to the tune of Rs. 1,47,56,486/-; as mentioned earlier. There is no dispute that this amounts to an offence U/s....... + More

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• 2024 (4) TMI 814
  Recovery of alleged outstanding dues of unpaid tax amounts - Section 29 of APVAT Act, 2005 - Appeal was dismissed for default due to the petitioner's repeated non-appearance despite being granted several adjournments. - HELD THAT:- Considering the submissions advanced, it is evident from the appellate order dated 19.07.2023 that the appeal is of the year 2015 and inspite of several adjournments, the petitioner was not turning up for hearing and consequently, the appeal was dismissed for default against which application for restoration of appeal filed recently is pending. To provide opportunity of hearing to the petitioner on the merits ....... + More

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• 2024 (4) TMI 813
  Benefit of Exemption from CST - stock transfer or inter-state sale - Whether the movement of goods in the instant case is only a stock transfer to the branches and liable to be exempted under Section 6A of the CST Act 1956 or the transaction is an interstate sale under Section 3(a) of the CST Act and liable for tax under CST Act 1956? - HELD THAT:- The impugned order shows that the works orders sent by the HO contain the details of individual customer companies and item wise description of the rubber sheets with specific design and quantity which manifests that rubber sheets are being tailor-made to suit the needs of the individual customers....... + More

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• 2024 (4) TMI 812
  Entitlement for issuance of C-Forms post the introduction of G.S.T. regime for natural gas - entitlement for the refund of the amount already collected at full rate. Issuance of C-Forms Post G.S.T. Regime - HELD THAT:- In CARPO POWER LIMITED VERSUS STATE OF HARYANA AND OTHERS [ 2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT] , before the Hon ble Punjab and Haryana High Court, the issue was the challenge made by a Petitioner for being refused to be issued C-Forms for the natural gas purchased in an inter-state trade for generation of electricity from Gujarat to Haryana. The question before the Court whether after the amendment of the C.S.T........ + More

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• 2024 (4) TMI 764
  Short payment of Interest - denial of interest from 01.04.2017 to 18.12.2020, the period during which the amount of input tax credit was lying in the electronic credit ledger of the petitioner - section 38 of the VAT Act. HELD THAT:- On perusal of provisions of subsection (2) of section 38 of the Act, it is clear that the registered dealer is entitled to refund from the date immediately following the date of closure of the accounting year to which the said the amount of refund relates till the date of payment of the amount of such refund. In the facts of the case, appellant order would be the relevant date or the end date however, the date f....... + More

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• 2024 (4) TMI 720
  Seeking to remove the encumbrance of the attachment in the petitioner's property - specific case of the petitioner is that the petitioner is a bona fide purchaser of the property from the fifth respondent and is therefore entitled to immunity under proviso to Section 43 of TNVAT Act, 2006 - HELD THAT:- In the facts and circumstances of the case, it is evident that the petitioner and the fifth respondent are known to each other and are in the same business. The petitioner ought to have obtained the certificate or for prior permission from the Commercial Tax Department before purchasing the property as to whether the property was fully fre....... + More

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• 2024 (4) TMI 622
  Violation of principles of natural justice - validity of impugned order dated 23.11.2020, confirming the demand for the Assessment Year 2013-14 - HELD THAT:- In view of the materials on record, the impugned order is unsustainable as the impugned order fails to note the decision of this Court in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [ 2017 (3) TMI 536 - MADRAS HIGH COURT] . In somewhat similar circumstances, this Court in the case of M/S. ANNALAKSHI TRADERS VERSUS THE ASSISTANT COMMISSIONER (ST) , POLLACHI (EAST) ASSESSMENT CIRCLE, POLLACHI. [ 2022 (1) TMI 806 - MADRAS HIGH COURT] held Admit....... + More

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• 2024 (4) TMI 621
  Time limitation for availing Input Tax Credit - Validity of reassessment order and demand notices - Availment of Input Tax Credit by filing belated returns - HELD THAT:- In BEML's case [ 2023 (1) TMI 341 - KARNATAKA HIGH COURT] , the Division Bench held A plain reading of provision of Section 10(3) of the KVAT Act, 2003, shows that no time limit or restriction is prescribed for availing the input tax credit. Apart from setting aside the impugned orders passed by the Joint Commissioner of Commercial Taxes, the impugned reassessment orders at Annexures-'H1' to 'H3' and consequent demand notices at Annexures- 'J1' to....... + More

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• 2024 (4) TMI 467
  Rejection of branch transfer / Stock transfer of Goods - movement of the goods from the manufacturing unit of the respondent at Navi Mumbai in the State of Maharashtra to the branch offices in other States - sale taking place during the course of inter-State trade or commerce or whether it was a case of branch transfer by the respondent to its branches at Ahmedabad, Delhi, Coimbatore, Bangalore, Chennai, Cochin, Hyderabad and Visakhapatnam? - burden of proof - HELD THAT:- What transpires from the decision of the Supreme Court in Hyderabad Engineering [ 2011 (3) TMI 1427 - SUPREME COURT] is that for a sale to be in the course of inter-State t....... + More

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• 2024 (4) TMI 426
  Validity of reassessment proceedings - Extension of period of limitation and the consequential notice dated 29.11.2022 issued by respondent no.3 to reassess the petitioner for assessment year 2012-13 (UP) - HELD THAT:- The Supreme Court in M/s Modi Naturals Ltd. Vs. The Commissioner of Commercial Tax, UP [ 2023 (11) TMI 298 - SUPREME COURT] has opined that notwithstanding the non-vatable/exempt nature of DORB, its sale value would have to be considered/included for the purpose of carving out exclusion under Section 13(1)(f) of the UP VAT Act. On that reasoning, the judgment of the learned Single Judge has been reversed. In view of the above ....... + More

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• 2024 (4) TMI 369
  Levy of tax - turnover of old machinery and equipment after the closure of business - scope of Business as contained in Clause (iv) of Section 2(e) of the U.P. VAT Act, 2008 - liability of payment of interest on the admitted turnover in terms of Sub-section (2) of the Section 33 of the U.P. VAT Act, 2008 - HELD THAT:- Upon a perusal of the orders passed by the Assessing Officer, First Appellate Authority and the Tribunal, one is able to decipher that the Tribunal has categorically come to the finding that the items that were sold after the closure of the business amounting to Rs. 1,33,20,839/- are in the nature of plant and machinery falling....... + More

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• 2024 (4) TMI 333
  Reversal of Input Tax Credit - genuine transactions or not - deregistered firm or not - validity of assessment order. Transactions not genuine - HELD THAT:- It is recorded that assessee, M/s. Chimco had declared purchase of coffee seeds from M/s.SLN Coffee Pvt. Ltd., and an output tax of Rs. 78,86,156/- has been paid. The assessment has been made by the Additional Commissioner of Commercial Taxes. The document speaks for itself that so far as petitioner was concerned, the tax amount was paid. M/s. Chimco was deregistered - HELD THAT:- The document (Annexure-M) filed by the assessee shows that deregistration has been approved on 16.07.2011 an....... + More

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• 2024 (4) TMI 322
  Review of the order - Recovery of dues - priority of charges - secured creditor have a prior right over the relevant Department of the Government to appropriate the amount realized by the sale of a secured asset - HELD THAT:- Considering the clear findings as recorded by the Court, in which the Court has clearly observed that the situation would be governed by the determination in paragraph 154 therein as there is material to indicate that the action of sale proclamation initiated by the respondents was preceded by notice under Section 178 of the MLR Code, warrant of attachment under Section 267(3), order of attachment in Form 4 and auction ....... + More

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• 2024 (4) TMI 220
  Maintainability of appeal - requirement to pay the mandatory pre-deposit under the GVAT Act and CST Act. It is the case of the petitioner that the Commissioner Appeals as well as the Tribunal while passing an order of pre-deposit has not considered the prima facie case in favour of the appellant. HELD THAT:- It appears that the Tribunal has imposed the condition of pre-deposit consisting of the entire demand under the Central Sales Tax. The Tribunal has passed an order requiring the appellant to deposit Rs. 36,00,000/- out of the total remaining demand of Rs. 36,19,825/-. Therefore we are of the opinion that the Tribunal has exceeded its jur....... + More

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Case Laws - Indian Laws

• 2024 (4) TMI 1007
  Validity of Arbitral Award - Ordering the petitioner to repay advances for rejected testing kits with interest and legal costs - Grievance of the petitioner is that the petitioner could not reexport the testing kits as the seals of the testing kits had been tampered/broken - HELD THAT:- Scope of interference under Section 34 of the Arbitration and Conciliation Act, 1996 is very limited. This Court can neither sit as a Court of appeal or re-appreciate the evidence placed before the Arbitral Tribunal or substitute the finding of the Arbitral Tribunal with its own conclusion on facts or evidence. In this connection, the decision of the Honourab....... + More

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• 2024 (4) TMI 954
  Food Safety and Standards - Inadequate labeling - Misbranding - Adulteration of foods or not - sugar boiled confectionaries - packets did not show the prescribed particulars such as complete address of the manufacturer and the date of manufacturing - violation of Rule 32(c) and (f) of the Prevention of Food Adulteration Rules, 1955. Appellants would argue that the entire case of the prosecution is liable to be dismissed for the simple reason that the Appellants were charged Under Rule 32(c) and (f) of the Rules but these provisions were not related to misbranding and were regarding something else. HELD THAT:- The Prevention of Food Adulterat....... + More

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• 2024 (4) TMI 953
  Dishonour of cheque - insufficient funds - vicarious liability - liability of group companies - liability common Directors of the group, namely, Right Choice Group of Companies - Lifting of the corporate veil - HELD THAT:- Section 141 of the NI Act is neither intended nor extends the vicarious liability on the group companies. It is intended to create vicarious liability only on the persons and officers who are either in-charge of the company, which is the main accused, or have connived or are negligent, resulting in the accused company committing the offence under Section 138 of the NI Act. Section 141 of the NI Act, therefore, cannot exten....... + More

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• 2024 (4) TMI 897
  Legal implication of a promotional trailer - promotional trailer is an offer or a promise - unfair trade practice - absence of specific content from the trailer in the movie - whether there is any deficiency in the provision of the entertainment service that the consumer has availed by paying the consideration through the purchase of a ticket? - HELD THAT:- A promotional trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractu....... + More

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• 2024 (4) TMI 896
  Dishonour of Cheque - territorial jurisdiction - Foreign instrument - Cheque not made payable in India; and, was not drawn on a bank in India - whether the presentation of the subject cheque at the Branch in Greater Kailash-I, New Delhi will be sufficient to invoke the provisions of Section 138 of the NI Act and make the complaint filed by the respondent no. 2 as maintainable? - HELD THAT:- In the present case, the cheque in question is not made in India; it was not made payable in India; and, was not drawn on a bank in India. It is, therefore, not an inland instrument - In the present case, the cheque in question is therefore, a foreign ins....... + More

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• 2024 (4) TMI 870
  Arbitral Proceedings - Computation of one-year period for completing the proceedings - Rejection of request of the petitioner to extend the time and proceeded to post the proceedings for issues - exclusion of days during which the proceedings were stayed, for calculation of timeline of twelve months for completion of proceedings - HELD THAT:- From the order sheet of the Arbitral proceedings, it is seen that the petitioner who is respondent before the Arbitral Tribunal, took more than three to four adjournments to file its objection statement and also to file counterclaim. Thereafter, it took several adjournments and also sought extension of ....... + More

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• 2024 (4) TMI 783
  Dishonour of Cheque - Scope of interim compensation - Liability of the Director the Company - Provisions of Section 143A of the NI Act is mandatory in nature or not - HELD THAT:- In the present case, the Impugned Order dated 24.07.2021 reflects that the learned Trial Court was of the opinion that Section 143A of the NI Act, is mandatory in nature and interim compensation has to be granted to the complainant in terms of the same as a rule and not as an exception. This view of the learned Trial Court cannot be upheld in view of the judgment of the Supreme Court in RAKESH RANJAN SHRIVASTAVA VERSUS THE STATE OF JHARKHAND ANR. [ 2024 (4) TMI 719 ....... + More

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• 2024 (4) TMI 782
  Dishonour of Cheque - compounding of offences - amicable settlement of disputes - Sections 138 and 147 of the Negotiable Instruments Act - HELD THAT:- In the facts of the instant case and the statutory provisions and the mandate of the Hon ble Supreme Court, in cases of Kanchan Mehta [ 2017 (10) TMI 218 - SUPREME COURT] and P. Mohanraj [ 2021 (3) TMI 94 - SUPREME COURT] , once the proceedings under Section 138 have been held to be proceedings in the form of a civil sheep in a criminal wolf s clothing, therefore, once the petitioner-accused has amicably decided to settle/liquidate/discharge his liability, though, the transaction-proceedings h....... + More

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• 2024 (4) TMI 719
  Dishonour of Cheque - grant of interim compensation - whether the provision of sub-section (1) of Section 143A of the Negotiable Instruments Act, 1881 (for short, the N.I. Act ), which provides for the grant of interim compensation, is directory or mandatory? - factors to be considered while exercising powers under sub-section (1) of Section 143A of the N.I. Act. HELD THAT:- In the case of Section 143A, the power can be exercised even before the accused is held guilty. Sub-section (1) of Section 143A provides for passing a drastic order for payment of interim compensation against the accused in a complaint under Section 138, even before any ....... + More

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• 2024 (4) TMI 669
  Dishonour of Cheque - Plea to expedite the trial of a complaint - Case of applicant is that though this complaint under the Act, 1881 was filed in the year 2022, but the trial could not be concluded - Section 143(2) of NI Act, 1881 - HELD THAT:- The Apex Court in the case of INDIAN BANK ASSOCIATION AND OTHERS VERSUS UNION OF INDIA AND OTHERS [ 2014 (5) TMI 750 - SUPREME COURT ], has issued direction for expeditious disposal of the cases under the Act, 1881 where it was held that We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious dispo....... + More

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• 2024 (4) TMI 668
  Dishonour of Cheque - Grant of Bail - Mandate to deposit of a minimum of twenty percent of the fine or compensation awarded by the trial court - failure to consider the Statutory Provisions as enshrined U/S 148(1) 148 (2) of NI Act 1881 - HELD THAT:- In the instant case, the Appellate court although vide order dated 29.02.2024 had admitted the appeal and also allowed the Bail Application moved by the appellant/petitioner but by the same order despite admitting the appeal preferred by the appellant/petitioner had erroneously rejected the stay and operation of the impugned order dated 16.02.2024 passed by the trial court and thereby, rejected ....... + More

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• 2024 (4) TMI 600
  Regularization of petitioners who had served as casual/daily wage workers for a period of more than 10 years when decision in Uma Devi was pronounced by Apex Court [ 2006 (4) TMI 456 - SUPREME COURT] - Reason for Tribunal's disinclination to grant relief was that no material could be brought on record to establish that appointment of petitioners was not illegal but merely irregular. HELD THAT:- It is not dispute at the Bar by learned counsel for employer that the petitioners are equally situated as Ravi Verma Ors [supra] for having completed more than 10 years of casual/daily wage services on the date 10.04.2006 when decision in Uma Devi....... + More

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• 2024 (4) TMI 557
  Maintainability of curative petition - restoration of arbitral award which had been set aside by the Division Bench of the High court on the ground that it suffered from patently illegality. Curative Jurisdiction may be invoked if there is a miscarriage of justice - HELD THAT:- In RUPA ASHOK HURRA VERSUS ASHOK HURRA ANOTHER [ 2002 (4) TMI 889 - SUPREME COURT] , a Constitution Bench of this Court dwelt on whether any relief is available against a final judgement of this Court after the dismissal of a petition seeking review of the judgement. Two opinions were authored. The main judgment was by Justice Syed Shah Quadri (on behalf of Chief Just....... + More

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• 2024 (4) TMI 556
  Dishonour of Cheque - issuance of statutory notice to proper person or not - acquittal of respondent No. 2 - not giving findings by the trial court will affect the outcome of the case or not. HELD THAT:- In this case, admittedly the cheques are issued on a Bank account maintained by the Company with the Federal Bank. It was not a Bank Account in the name of Respondent No. 2. He has signed as a Director of Respondent No. 1. The issue in Aneeta Hada s case is slightly different. It is on the point of necessity of joining Company when the cheques are drawn on an account maintained by the Company. The Company has to be joined - In this case, Com....... + More

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• 2024 (4) TMI 466
  Sale of mortgaged (scheduled) properties which was to be conducted by the Authorized Officer (Respondent No.2) of the Respondent-Bank - default in repayment of loan by the Borrower - HELD THAT:- This Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions invo....... + More

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• 2024 (4) TMI 465
  Time limitation - Refusal to condone the delay in challenging the Order passed by the Competent Authority and Administrator, SAFEM(FOP)A, 1976 and NDPS Act, 1985, New Delhi - HELD THAT:- A perusal of the judgments in CHHATTISGARH STATE ELECTRICITY BOARD VERSUS CENTRAL ELECTRICITY REGULATORY COMMISSION AND OTHERS [ 2010 (4) TMI 1031 - SUPREME COURT] and M/S. PATEL BROTHERS VERSUS STATE OF ASSAM AND OTHERS [ 2017 (1) TMI 330 - SUPREME COURT] show that if a special Act provides for a special period of limitation then Sections 4 to 28 of the Limitation Act cannot be made applicable and, therefore, there is no power in the Appellate Tribunal to c....... + More

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• 2024 (4) TMI 425
  Interpretation of a contract condition, which required the measurement of quantities used for payment for embankment construction with soil or with pond ash - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- This Court, in VOESTALPINE SCHIENEN GMBH VERSUS DELHI METRO RAIL CORPORATION LTD. [ 2017 (2) TMI 1239 - SUPREME COURT] commenting on the value of having expert personnel as arbitrators, emphasized that technical aspects of the dispute are suitably resolved by utilising their expertise when they act as arbitrators. The prevailing view about the standard of scrutiny- not judicial review, of an award, by persons of the....... + More

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• 2024 (4) TMI 368
  Dishonour of Cheque - seek production of documents in order to discover or to obtain proper proof of the relevant facts - Section 311 of the Cr. P.C. - HELD THAT:- The petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr. P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr. P.C., sought to bring on record the documents that are ....... + More

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• 2024 (4) TMI 366
  Bills of Exchange - Discounting of bill or Document Collection Method - appellant would vehemently contend that the learned Trial Judge was not right in treating the transaction as a 'Bill Discounting Transaction' where the appellant had assured payment - HELD THAT:- Though appellant would contend that there was no underlying LC or BG or an OCC limit in favour of the first defendant to support these transactions, we are unable to accept his contention as the arrangement between the first and second defendants are exclusively within their knowledge and the presence or absence of LC or BG or an OCC limit will not affect the liability o....... + More

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• 2024 (4) TMI 332
  Freezing of Bank Accounts - investigation under the FCRA - Seeking to continue utilising their accounts for payment of salary and institutional expenses - Section 37 of the Foreign Contribution (Regulation) Act 2010 - Contempt petition - HELD THAT:- The petitioner had taken the Court through various documents to show that actually there was no contempt and whatever amount had been withdrawn was within the permissible limits depending upon the expenses incurred in the previous years and the allegations of any withdrawal from the accounts for purposes other than the salary and institutional expenses, is not correct. The petitions disposed off ....... + More

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