15 July 2019


Judgments

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Alliance Commodities Private Limited Vs. Office of Registrar of Companies-West Bengal

MANU/NL/0284/2019

09.07.2019

Company

Restoration of a Company, whose name has been struck off from the Register of Companies is possible only on satisfaction of Tribunal

Appellant is aggrieved of dismissal of its appeal preferred under Section 252 (3) of the Companies Act, 2013 against striking off of its name by the Respondent - Registrar of Companies, (ROC). The impugned order was passed by the National Company Law Tribunal, in exercise of its appellate jurisdiction after coming to conclusion that, the Appellant Company was not in operation and was not doing any business on the date of striking off of the name of the company.

The Tribunal was further influenced by the fact that the Appellant Company appeared to have engaged in advancing inter-corporate loans in violation of Section 186(1) of the Companies Act, 2013. Aggrieved by the order of Tribunal, the Appellant seeks reversal of its order passed in appeal as also setting aside of the order of striking off of its name by Respondent primarily on the ground that, the Appellant Company had assets and had filed all its income tax returns which has been ignored by the Tribunal which landed in error in holding that the Appellant Company was a Shell Company and had violated provisions of law in giving loans and advances. The issue before the Tribunal was whether the Appellant Company could justifiably be restored.

Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company, whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that, the Company at the time of its name being struck off was carrying on business or in operation or otherwise it is 'just' that the name of company be restored.

The term "or otherwise" has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term "or otherwise" cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company.

A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression "or otherwise" which would be a travesty of justice besides defeating the very object of the Company. Such course would neither be just nor warranted.

The Appellant has failed to make out a just ground warranting interference with the impugned order which is neither shown to be legally infirm nor are the findings recorded therein shown to be erroneous, much less perverse. Being devoid of merit the appeal is dismissed.

Tags : Name striking off Validity

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High Court of Sikkim

Sumantra Gupta Vs. State of Sikkim

MANU/SI/0043/2019

06.07.2019

Criminal

Bail cannot be granted, if it appears considering the antecedents of Applicant, that by taking advantage of anticipatory bail order, he will flee from justice

In present case, learned Senior Advocate for the Applicant apprehends imminent arrest in view of the lodgment of First Information Report for alleged offences committed by unknown person under Sections 419, 468, 471, 420, 120B of the Indian Penal Code, 1860 (IPC) as well as Sections 66 (C) and 66(D) of the Information Technology Act, 2000 (IT Act).

Emphasizing the need to preserve the personal liberty of the Applicant, the learned Senior Counsel submitted that, the Applicant was not involved in any crime for which punishment prescribed was death or imprisonment for life. He submitted that, the co-accused had already been granted regular bail.

As held by the Constitutional Bench of the Supreme Court in Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab, Section 438 of the Code of Criminal Procedure, 1973 (CrPC) which is concerned with personal liberty cannot be whittled down by reading restrictions and limitation into it. In order to meet the challenge of Article 21 of the Constitution of India, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

The Constitutional Bench noticed that, the CrPC did not contain any specific provision corresponding to the present Section 438 CrPC. It was also noticed that, the Law Commission of India, in its 41st report pointed out the necessity of introducing a provision for grant of anticipatory bail. The necessity for granting anticipatory bail, it was observed in the report arose mainly because sometimes influential persons try to implicate their rivals in getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, these tendencies were showing signs of steady increase. It was observed that apart from false cases, where there are reasonable grounds for holding that, a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. It was observed that it would not be practicable to lay down conditions under which alone anticipatory bail could be granted and Superior Courts would undoubtedly exercise their discretion properly.

The Constitutional Bench of the Supreme Court also held that on the other hand, if it appears likely, considering the antecedents of the Applicant, that taking advantage of the order of anticipatory bail he will flee from justice such an order would not be made.

This Court is strongly of the opinion that, present is therefore not a fit case for exercising discretion under Section 438 of CrPC in favour of the Applicant. It does not sound to reason to arm the Applicant with anticipatory bail, when pitted against such grave allegation of defrauding young medical aspirants with the lure of admission in SMIMS.

The materials collected by the investigating agency so far placed for perusal before present Court does reflect prima facie involvement of the Applicant in the offences alleged. The lodging of more than one FIR for commission of similar offences for different periods of time also reflects accusation of repeated commission of similar offences. The question of granting anticipatory bail does not arise. The application for anticipatory bail is rejected.

Relevant

Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab MANU/SC/0215/1980

Tags : Anticipatory Bail Grounds Entitlement

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High Court of Allahabad

Kuldeep Vs. State of U.P.

MANU/UP/1584/2019

05.07.2019

Criminal

It is only upon Court to alter charge or reject application, neither prosecution nor defence has any right for alteration of charges

The present application has been filed to quash the order passed by Additional District Judge, arising out of case crime registered under Sections 323, 324, 504, 506, 308 of Indian Penal Code, 1860 (IPC). Issue arise in present case is whether application moved by Applicant under Section 216 of Code of Criminal Procedure, 1973 (CrPC) is sustainable.

Section 216 of CrPC provides that, any Court may alter or add to any charge at any time before judgment is pronounced. Every such alteration or addition shall be read and explained to the accused. If the alteration or addition to a charge is such that, proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. If the alteration or addition is such that, proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

In case of P. Kartikalakshmi vs. Ganesh and Ors., Apex Court has clearly held that, application preferred by the Applicant before trial court is not maintainable, it was not incumbent upon the trial court to pass order under Section 216 of CrPC. Therefore, there is no question of said order being revisable under section 397 of CrPC. The Court has held that, it is only upon the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice, meaning thereby application can be moved to bring the facts into notice of the Court but, it is upon the Court to pass any order or not.

Therefore, in view of facts and circumstances of the case as well as law laid down by the Apex Court, it is clear that, under Section 216 of CrPC, neither prosecution nor defence has any right for alteration of charges. Their right only confined to bring some evidence or fact into the notice of Court for alteration of charge, but thereafter, it is only upon the Court to alter the charge or reject the application for alteration of charges. Accordingly, the application is dismissed.

Relevant

P. Kartikalakshmi vs. Ganesh and Ors. MANU/SC/1321/2014

Tags : Charges Alteration Right

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High Court of Bombay

Umabai and Ors. Vs. The State of Maharashtra and Ors.

MANU/MH/1765/2019

04.07.2019

Service

Executive Instructions cannot override statutory rules

The Petitioners assail the Government Resolution dated 4th October, 1983 and orders issued by Respondent Nos. 1 and 3 denying the pension and pensionary benefits to Petitioners. The Petitioners are denied the pensionary benefits on the ground that they did not possess the qualification of trained teacher. Under the Government Resolution dated 04th October, 1983, the Government took a decision that, assistant teachers appointed on or before 1972, not possessing D. Ed. qualification, but possessing only S.S.C. qualification shall be deemed to be trained teachers. The petitioners are appointed after the year 1972.

The learned counsel for Petitioners submit that, providing the cut off date i.e. teachers appointed prior to 1st July, 1972 and not possessing qualification of D. Ed. shall be treated as deemed trained teachers thereby leaving out the teachers appointed after 1st July, 1972 is illegal and erroneous.

It has been time and again reiterated by the Apex Court that, pension is neither a bounty, nor matter of grace depending upon the sweet will of the employer and that it creates vested right. Pension is not ex-gratia payment, but it is a payment for the past service rendered. It is a secured health and support to an ex-employee who is no more in a position to work and earn after devoting his prime time of life to the service of the State.

The Maharashtra Civil Services (Pension) Rules, 1982 nowhere provide that if a person is working on substantive post and is regularly appointed, but does not possess the qualification of a trained teacher is not eligible for pension. The Executive Instructions cannot override the statutory rules.

It is not disputed by Respondents that, the Petitioners were duly appointed on a substantive and sanctioned posts. They have completed the minimum period of qualifying service. In fact, most of the Petitioners have completed more than 30 years of service and honourably retired on attaining age of superannuation. They were treated as regular employees, were paid the regular salary, their appointments are approved as per their qualification. No rule exists in the Pension Rules that, would deny the Petitioners right to claim pension. The posts these Petitioners were holding, were never declared to be non pensionable or that the posts created by it shall not be qualifying service for pension. In absence of any rules, denying the right to get pension to the petitioners will not be permissible.

The Government Resolution dated 4th October, 1983 prescribing that those appointed prior to the cut off date i.e. 1st July, 1972 and possessing only S.S.C. qualification would be deemed trained teachers not those appointed till the date of Government resolution is unreasonable classification.

The Petitioners would be entitled for pension and pensionary benefits. The respondents shall consider case of the petitioners for pensionary benefits and shall not refuse to grant pensionary benefits to the petitioners on the ground that they did not possess the necessary qualification.

Tags : Pensionary benefits Denial Legality

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High Court of Calcutta

Kajal Roy Vs. State of West Bengal and Ors.

MANU/WB/1554/2019

04.07.2019

Civil

If a person satisfies that, he is a necessary or a proper party or both, then, he is entitled to be added as a party to writ petition and be heard therein

Applicant is a co-accused in a criminal case. Applicant seeks to be added as a party Respondent in a writ petition which alleges perfunctory investigation by the Police in relation to a police case where the applicant is one of the accused.

The application for addition of party is opposed on behalf of the writ petitioner. Learned Advocate appearing for the writ petitioner submits that, the applicant is an accused in a criminal case. The applicant cannot have any say in the investigation or the Investigating Authority investigating the criminal complaint. Therefore, the applicant cannot be added as party respondent in the writ petition.

The applicant is an accused in a criminal case. The applicant is enlarged on anticipatory bail. An accused has no right to be heard at the stage of investigation. The present writ petition relates to alleged perfunctory investigation made by the Investigating Agency with regard to a criminal complaint. The writ petitioner made diverse allegations against the accused in the writ petition. Although, the entirety of the provisions of the Code of Civil Procedure, 1908 (CPC) does not apply to a writ proceeding, the principles of CPC are attracted.

A person can come to the Writ Court and seek addition as a party in a pending writ petition where such person can substantiate that, he is a necessary or a proper party or he is both. If such person satisfies that, he is a necessary or a proper party or both, then, he is entitled to be added as a party to the writ petition and be heard therein.

The fact that, the writ petition relates to Police inaction or perfunctory investigation with regard to a Police complaint, does not alter the basic fact that, it is a writ petition where, principles of CPC stands attracted. The writ petition is replete with allegations against the applicant. The applicant therefore is entitled to contest those allegations. It can contest such allegations validly, if it is a party in such writ petition.

Therefore, even if the Applicant is not treated as a necessary party, the applicant must be treated to be a proper party in the writ petition by virtue of the allegations made against the applicant, in the writ petition. By a person being a necessary party in a proceeding, it is understood that, the presence of such party is indispensable to the proceeding and that, no effective order can be passed in absence of a necessary party. A proper party is understood to be one in whose absence an effective order can be passed. The application allowed. The applicant is added as a Respondent in the writ petition.

Tags : Proper party Addition Perfunctory investigation

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Customs, Excise and Service Tax Appellate Tribunal

Genau Extrusions Ltd. Vs. The Commissioner of G.S.T. & Central Excise, Salem

MANU/CC/0163/2019

04.07.2019

Excise

When place of removal is buyer's premises, Appellant is eligible for credit

The Appellants are engaged in the manufacturing of parts of Fuel Injection Pump/Valve Assembly and are registered with the Central Excise Department. On verification of accounts, it was seen that, the Appellants had availed input Service Tax credit on Outward Transportation of Goods up to the buyer's premises. The Department was of the view that the place of removal can only be the factory gate and therefore, the Outward Transportation beyond the factory gate is not eligible for credit.

A Show Cause Notice was issued proposing to recover the wrongly availed credit along with interest and also for imposing penalties. After due process of law, the Original Authority confirmed the demand along with interest and imposed equal penalty. In appeal, the Commissioner (Appeals) vide impugned order upheld the same. The issue is whether the Appellant is eligible for the credit of Service Tax paid on Outward Transportation of Goods up to the buyer's premises.

On perusal of records as well as the purchase orders, it is seen that the sale is on FOR basis. The authorities below have disallowed the credit holding that, there is no evidence to establish that the sale is on FOR basis. It is not necessary that there should be a separate contract for supply of goods. The parties can agree to the terms and conditions of the sale in the purchase orders itself. This becomes a concluded contract when the offer is accepted by the supplier/buyer. Therefore, when the purchase orders itself show that the condition for sale is FOR basis, the observations made by the authorities below that the Appellant has failed to produce any evidence/contract establishing that they have borne the freight charges, insurance, etc., is without any factual basis and unacceptable.

Further, in the present case, letters/certificates have been obtained by the Appellant from the purchasers of the goods showing that the purchasers have not paid any freight charges separately. This strongly implies that, the Appellants have borne the freight charges and have included it in the assessable value on which Excise Duty has been discharged by them.

The decision of the Hon'ble Apex Court in the case of M/s. Roofit Industries Ltd. will apply and the place of removal is the buyer's premises. In such circumstances, the decision of the Tribunal in the case of M/s. Ultratech Cement Ltd. squarely applies. As rightly argued by the appellant, the Hon'ble Apex Court in the case M/s. Ultratech Cement Ltd. has observed that, credit on Outward Transportation of Goods will not be eligible beyond the place of removal.

In the present case, the place of removal being the buyer's premises, the Appellant is eligible for credit. The disallowance of credit is unjustified. The impugned order is set aside. Appeal allowed.

Relevant

Commissioner, Customs and Central Excise vs. Roofit Industries Ltd. MANU/SC/0483/2015
; Commissioner of Central Excise Service Tax vs. Ultra Tech Cement Ltd. MANU/SC/0065/2018

Tags : Credit Disallowance Legality

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