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TMI Blog2018 (2) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... is no infirmity in the award of the learned arbitral tribunal in granting an interest on ₹ 1,88,08,233/- to the respondent herein. The award is fully justified - petition dismissed. - O.M.P. (COMM) 11/2018 and IA No.532/2018 - - - Dated:- 6-2-2018 - MR. YOGESH KHANNA, J. For The Petitioner : Mr.Chinmoy Pradip Sharma, Mr.Shailesh Kumar Sinha and Mr.Yadendra Yadav, Advocates. For The Respondent : Mr.Varun Mishra, Advocate CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J. 1. This petition is under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as the Act ) for setting aside impugned award dated 16.10.2017 passed by the arbitral tribunal. The brief facts of the case are: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.03.2015, the Rajasthan Tax Board, Ajmer dismissed the appeal filed by the Tax Department against the Petitioner on the ground the Tax Department failed to establish that there were two transactions and also held the Tax Authority misconstrue the concept of proforma invoices; e) the respondent issued a legal notice dated 09.02.2016 to the petitioners seeking refund of ₹ 2.59 Crores within 15 days along with interest at the rate of 12% per annum. The petitioners on 14.04.2016 issued a reply to the notice dated 09.02.2016 wherein it was categorically stated that the petitioners had rightly withheld a sum of ₹ 1.89 Crores on account of erroneous tax liability being foisted upon the petitioner and the tax proceedings wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject. The relevant clauses are: 21. KSOL shall fully indemnify MMTC and keep MMTC fully indemnified and harmless against any losses or damages whatsoever including liabilities arising out of failure to comply with any or all of the conditions/clauses of future trading on NCDEX. KSOL shall also keep MMTC indemnified against all such payment/ liabilities if claimed by any authority/ies, even at a later date against the transaction made under this agreement. Further, without any protest or demur KSOL indemnifies MMTC and its branches and shall always keep MMTC fully indemnified and agrees to hold MMTC and its branches harmless against any loss claim, damage, demurrage, costs, penalties, liabilities, legal cases, shortage during tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich have accrued prior to the termination or which may arise out of or in connection with trades/transaction entered into or acts done or omitted prior to the termination, but which may result in future dues/obligations payable by KSOL to MMTC and/or the financial institutions/ banks and/or NCDEX and/or any other authority. 4. Admittedly the petitioner invoke the bank guarantee and adjusted its outstanding dues against the petitioner leaving a balance of ₹ 1,88,08,233/- which it did not pay to the respondent herein on apprehension of a future tax liability. The arbitral tribunal dealt with this issue as under: 8. In the meanwhile, the Respondent on 05.01.2012 invoked the bank guarantee of the Claimant and encashed the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) and the Tax Board respectively. 9. In my view, it is a finding of fact based on appreciation of evidence on record and no question of law can be said to arise out of the order of the Tax Board, I do not find any i11ega1ity or perversity in the order impugned so as to ca11 for interference of this Court. 6. Further the cross examination of petitioner s witness namely Mr.Rajesh Shah in an answer to a question had said: Q. Please explain your averment in your reply to the claim petition that due to typographical error Rajasthan Tax Authorities have raised tax demand over MMTC? Ans. The typographical error is that instead of Indore it was typed as Jaipur. 7. Thus the witness of the respondent had admitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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