TMI Tax Updates e-Newsletter
Jun 07,2025

1. Whether the impugned show cause notice dated 28th May 2024 and the consequent adjudication order dated 27th August 2024 are legally sustainable.

2. The vires and validity of Notification No. 9/2023-Central Tax dated 31st March 2023, Notification No. 56/2023-Central Tax dated 28th December 2023, and Notification No. 56/2023-State Tax dated 11th July 2024 (collectively, the impugned notifications) issued under Section 168A of the Central Goods and Services Tax Act, 2017 (GST Act).

3. Whether the extension of time limits for adjudication under Section 73 of the GST Act and the corresponding State GST Act for the financial year 2019-20 could be validly effected by the impugned notifications.

4. The legality of denial of Input Tax Credit (ITC) of Integrated GST (IGST) based on alleged mismatch between GSTR-2A and GSTR-3B returns, particularly in the context of absence of a provision under Rule 60 of the Central GST Rules for auto-upload of IGST credit during the relevant period.

Issue-wise Detailed Analysis

Validity of the Impugned Notifications under Section 168A of the GST Act

Relevant Legal Framework and Precedents: Section 168A of the GST Act mandates that any extension of time limits for adjudication of show cause notices and passing of orders requires prior recommendation from the GST Council. The impugned notifications purportedly extended deadlines for adjudication for the financial year 2019-20.

Several High Courts have delivered divergent opinions on the validity of these notifications. The Allahabad High Court upheld Notification No. 9/2023 (Central Tax), the Patna High Court upheld Notification No. 56/2023 (Central Tax), while the Guwahati High Court quashed Notification No. 56/2023 (Central Tax). The Telangana High Court raised observations on the invalidity of Notification No. 56/2023 (Central Tax) without delving deeply into the issue.

The Supreme Court has taken cognizance of the conflicting High Court decisions and issued notices in the Special Leave Petition (SLP) No. 4240/2025 titled 'M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors.' The Supreme Court's order dated 21st February 2025 framed the core issue as whether the time limit for adjudication under Section 73 of the GST Act and corresponding State GST Acts could be extended via the impugned notifications under Section 168A.

Court's Interpretation and Reasoning: The present Court noted the ongoing litigation and conflicting judicial opinions on the validity of the impugned notifications. It acknowledged that the matter is sub judice before the Supreme Court and that the final determination on the validity of these notifications is pending. The Court observed that the notifications' issuance process, particularly the timing of the GST Council's recommendation relative to the notifications, was a critical point of contention.

Treatment of Competing Arguments: The petitioners challenged the notifications on procedural grounds, alleging non-compliance with Section 168A's requirement of prior GST Council recommendation and expiry of limitation periods. The respondents defended the notifications' validity, relying on the GST Council's recommendations and prior judicial precedents upholding the notifications. The Court refrained from expressing a definitive opinion on the validity of the notifications, deferring to the Supreme Court's impending decision.

Conclusions: The Court disposed of several petitions in the batch, subject to the outcome of the Supreme Court's decision in the SLP. For challenges to parallel State notifications, the Court retained jurisdiction for consideration. It emphasized that all orders passed would be subject to the Supreme Court's final ruling.

Denial of Input Tax Credit of IGST on Grounds of Mismatch Between GSTR-2A and GSTR-3B

Relevant Legal Framework and Precedents: The denial of ITC was premised on alleged discrepancies between the GSTR-2A and GSTR-3B returns filed by the petitioner for the financial year 2019-20. The petitioner contended that during the relevant period, Rule 60 of the Central GST Rules did not provide for auto-uploading of IGST credit in GSTR-2A against imports, making such mismatch-based denial inappropriate.

Precedents from this Court in W.P.(C) 9546/2024 (Charu Overseas Pvt. Ltd.) and W.P.(C) 16072/2024 (Rahul Singhal Proprietor Shivalik Enterprises) had similarly addressed the issue, directing fresh adjudication in cases involving denial of ITC on similar grounds.

Court's Interpretation and Reasoning: The Court found merit in the petitioner's contention that the adjudicating authority had not considered the absence of the relevant ITC auto-upload mechanism under Rule 60 during the financial year 2019-20. The Court noted that the impugned order relied on an ex-parte adjudication based on alleged mismatches without affording the petitioner a proper opportunity to be heard or to file replies.

Key Evidence and Findings: The Court examined the attachment to the Demand and Recovery Certificate (DRC 07), which indicated under-declared IGST liability of Rs. 2,59,61,106. The petitioner had filed annual returns (GSTR-09) and other GST returns, but the adjudicating authority found discrepancies. However, the Court observed that the technical limitations of the GST portal and procedural rules during the relevant period were not taken into account.

Application of Law to Facts: Given the procedural lacuna and the absence of a mechanism for auto-upload of IGST credits in GSTR-2A during the relevant period, the Court held that the petitioner ought to be given an opportunity for fresh adjudication on merits. The Court directed the adjudicating authority to allow the petitioner to file a reply to the show cause notice and to provide a personal hearing before passing any fresh order.

Treatment of Competing Arguments: The petitioner argued for setting aside the impugned order due to procedural unfairness and technical impossibility of matching ITC data. The respondent authorities relied on the statutory framework and the returns filed to justify the denial. The Court balanced these arguments by emphasizing the need for procedural fairness and opportunity to be heard.

Conclusions: The Court set aside the impugned order denying ITC and remanded the matter to the adjudicating authority for fresh adjudication. The petitioner was permitted to file a reply by 10th July 2025, and a personal hearing was to be granted. The Court also ensured access to the GST portal and related documents for the petitioner.

Impact of Pending Supreme Court Proceedings and Interim Orders

The Court recognized the judicial discipline principle and deferred to the Supreme Court's decision in the SLP concerning the validity of the impugned notifications. It noted that various High Courts had either upheld or quashed the notifications, resulting in a cleavage of judicial opinion. Interim orders passed by other High Courts, such as the Punjab and Haryana High Court, were also acknowledged, which stayed proceedings pending Supreme Court adjudication.

The Court disposed of petitions with the caveat that the final outcome would be governed by the Supreme Court's ruling. It left open all rights and remedies of the parties and clarified that the fresh adjudication and orders would be subject to the Supreme Court's decision.

Significant Holdings

"Considering the fact that the present petition involves a legal issue regarding the non-availability of the utility for submission of IGST at the relevant point in time, this Court is of the opinion that the Petitioner ought to be given an opportunity for fresh adjudication as the said issue has not been considered while passing the impugned order."

"The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly."

"All the rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable filing of reply and access to the notices and related documents."

"However, it is again made clear that the issue in respect of the validity of the impugned notifications is left open and the order of the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in S.L.P No 4240/2025."

Core principles established include the necessity of procedural fairness in GST adjudication, particularly the right to file replies and avail personal hearings before orders are passed. The judgment underscores that technical or procedural limitations in GST return filing mechanisms at the relevant time must be taken into account before denying ITC. Additionally, it affirms judicial restraint and adherence to hierarchy by deferring the question of validity of statutory notifications to the Supreme Court when conflicting High Court decisions exist.

Final determinations include setting aside the impugned order denying IGST credit and directing fresh adjudication with opportunity for the petitioner to be heard. The Court refrained from deciding on the validity of the impugned notifications, leaving that issue open pending Supreme Court adjudication.

The core legal questions considered by the Court in this matter are:

(a) Whether the adjudicating authority erred in computing the GST liability by considering the total turnover of all products manufactured and supplied by the petitioner, instead of limiting the computation to the turnover of only five specific products identified in the show cause notice;

(b) Whether the impugned show cause notice and order were arbitrary, excessive, unjust, unfair, illegal, and without jurisdiction, particularly for including products beyond the scope of the inquiry and for not granting a personal hearing;

(c) Whether the writ petition under Article 227 of the Constitution of India is maintainable in the presence of an alternative statutory remedy under Section 107 of the CGST Act;

(d) Whether the petitioner's contention that the five products containing less than 5% fruit content should be classified as carbonated beverages attracting GST at a higher rate, while other products should not be included in such classification, is legally sustainable;

(e) Whether the adjudicating authority's reliance on the petitioner's self-declared turnover in GSTR-1 returns without reconciliation with the reply submissions was justified in determining the GST liability.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) - Computation of GST liability based on total turnover versus turnover of five specific products

The petitioner's primary grievance was that the adjudicating authority incorrectly computed the GST liability by including the entire turnover of Rs. 693,92,53,454/- instead of restricting it to the disputed turnover of Rs. 115,60,11,418/- pertaining only to the five specified products. The show cause notice and the adjudication process focused solely on these five products alleged to be carbonated beverages due to their fruit content being less than 5% as per FSSAI regulations.

The petitioner relied on the show cause notice paragraphs and product-wise turnover details to demonstrate that the inquiry was confined to these five products. The petitioner argued that the adjudicating authority's inclusion of the entire turnover was contrary to the facts and amounted to an error of jurisdiction and fact.

The adjudicating authority, however, noted that the petitioner had self-declared the supply value of Rs. 693,92,53,454/- under the relevant HSN codes in their GSTR-1 returns, while submitting a different calculation for the disputed products without any reconciliation or justification. Therefore, the authority treated the entire turnover as the basis for tax computation, applying the higher GST rate applicable to carbonated beverages.

This raised a disputed question of fact regarding the accuracy and consistency of the petitioner's declarations in statutory returns vis-`a-vis their replies during adjudication.

Issue (b) - Legality and procedural fairness of the show cause notice and impugned order

The petitioner contended that the show cause notice and the impugned order were arbitrary, excessive, and without jurisdiction, particularly because the order extended beyond the grounds indicated in the show cause notice and was passed without granting a personal hearing. The petitioner sought quashing of the notice and order on these grounds.

The Court observed that the adjudicating authority had issued the show cause notice with specific reference to the five products and had proceeded on that basis. The petitioner had been served with notice and had filed replies. There was no indication of violation of principles of natural justice such as denial of personal hearing. The Court found no established breach of fundamental rights or excess of jurisdiction.

Issue (c) - Maintainability of writ petition under Article 227 in presence of alternative remedy

The Court relied on the precedent set by the Supreme Court in a similar case, which held that the existence of an alternate statutory remedy under Section 107 of the CGST Act is not an absolute bar to entertaining a writ petition under Articles 226 or 227, but such petitions are to be entertained only in exceptional circumstances such as breach of fundamental rights, violation of natural justice, excess of jurisdiction, or challenge to the vires of the statute.

In the present case, none of these exceptions were established. The petitioner had a statutory remedy of appeal before the Commissioner (Appeals) under Section 107, which had not been availed. The Court emphasized that the assessment of disputed facts must be carried out by the appellate authority rather than by writ jurisdiction.

Issue (d) - Classification of products and applicability of GST rates

The petitioner argued that only the five specified products containing less than 5% fruit content should be classified as carbonated beverages attracting GST @ 28% plus compensation cess @ 12%, while other fruit juice-based beverages should be taxed at a lower rate of 12%. The petitioner contended that the adjudicating authority erred in applying the higher rate to the entire turnover.

The adjudicating authority found that the petitioner had self-declared the entire turnover under the relevant HSN codes, which included the disputed products, and had not reconciled the lower calculations submitted during adjudication with these declarations. Therefore, the authority treated the entire turnover as subject to the higher GST rate applicable to carbonated beverages.

This issue involved factual determination regarding product classification and turnover declarations, which the Court held was more appropriate for the appellate authority to decide.

Issue (e) - Reliance on self-declared turnover in GSTR-1 returns

The adjudicating authority relied on the petitioner's self-declared turnover figures in their statutory GSTR-1 returns to determine the GST liability, noting the absence of reconciliation with the petitioner's reply submissions. The petitioner challenged this reliance, asserting that only the turnover of the five disputed products should have been considered.

The Court noted that this factual dispute as to the correctness and reconciliation of turnover figures raised questions that required detailed examination by the appellate authority. The Court declined to interfere with the factual findings at the writ petition stage.

3. SIGNIFICANT HOLDINGS

The Court, applying the principles established by the Supreme Court in the cited precedent, held that:

"The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation."

Since none of these exceptions were established, the Court was "not inclined to entertain this writ petition and relegate the petitioner to avail alternative remedy of preferring an appeal before the Commissioner (Appeals) challenging the impugned Order-in-Original under section 107 of the Act."

The Court further observed that the adjudicating authority's reliance on the petitioner's self-declared turnover in GSTR-1 returns, despite discrepancies in the petitioner's replies, raised disputed questions of fact that required verification by the appellate authority rather than interference by writ jurisdiction.

Accordingly, the Court disposed of the petition without entering into the merits, emphasizing the availability and efficacy of the statutory appeal mechanism. The Court did not make any observations on the substantive merits of the petitioner's claims or the correctness of the impugned order.

1. Whether the writ petition under Article 226 of the Constitution of India is maintainable against the impugned order passed by the tax authorities, given the existence of an alternate statutory remedy under Section 107 of the Central Goods and Services Tax (CGST) Act, 2017.

2. Whether the issuance of a consolidated Show Cause Notice (SCN) and consequent impugned order covering multiple financial years is legally permissible.

3. Whether the allegations of fraudulent availment of Input Tax Credit (ITC) by the Petitioner warrant interference by the Court in writ jurisdiction, or whether such matters require detailed factual adjudication by the appellate authorities.

Issue 1: Maintainability of Writ Petition under Article 226 vis-`a-vis Alternate Remedy under Section 107 of the CGST Act

Legal Framework and Precedents: The Court relied heavily on the Supreme Court's ruling in a landmark case which clarified that writ petitions under Article 226 are maintainable only under exceptional circumstances such as breach of fundamental rights, violation of natural justice principles, excess of jurisdiction, or challenge to the vires of a statute or delegated legislation. The existence of an alternate statutory remedy is not an absolute bar but ordinarily precludes writ jurisdiction unless such exceptions are met.

Court's Interpretation and Reasoning: The Court found no exceptional circumstances in the present case. There was no breach of fundamental rights or violation of natural justice, as the Petitioner had been duly served with notice. The impugned order arose from a Show Cause Notice and was appealable under Section 107 of the CGST Act. The Court emphasized that factual assessments and merits of the case must be examined by the appellate authorities rather than through writ jurisdiction.

Key Evidence and Findings: The SCN and impugned order detailed allegations of fraudulent ITC availment amounting to Rs. 2,38,062/-. The Petitioner had access to the statutory remedy of appeal, which had not been exhausted. The Court noted that the High Court below had proceeded on surmises rather than evidence.

Application of Law to Facts: The Court applied the principle that writ jurisdiction is extraordinary and not a substitute for statutory remedies. The Petitioner's grievances were to be ventilated through the appeal mechanism under the CGST Act.

Treatment of Competing Arguments: The Petitioner argued for writ relief on grounds including procedural irregularities and consolidated SCN issuance; however, the Court held that these did not amount to exceptional circumstances warranting writ interference.

Conclusion: The writ petition was not maintainable and was dismissed, with liberty to pursue statutory remedies.

Issue 2: Legality of Issuing Consolidated Show Cause Notice and Impugned Order for Multiple Financial Years

Legal Framework and Precedents: The Court acknowledged that the issue of consolidated SCNs covering multiple financial years was under judicial consideration in a related writ petition pending before the same Court. No definitive ruling was made in the present case, but the Court indicated that the outcome of that case would be binding on future proceedings.

Court's Interpretation and Reasoning: The Court refrained from expressing any conclusive view on the validity of consolidated SCNs and impugned orders spanning multiple years, deferring to the pending case.

Key Evidence and Findings: The Petitioner raised this as a ground of challenge, but the Court noted the issue was sub judice and reserved for separate adjudication.

Application of Law to Facts: The Court suggested that the Petitioner may raise this issue in appeal, and the decision in the pending writ petition would guide the appellate authority and future proceedings.

Treatment of Competing Arguments: The Petitioner's contention was acknowledged but not adjudicated upon.

Conclusion: No interference was made; the issue remains open for determination in the pending related case and on appeal.

Issue 3: Allegations of Fraudulent Availment of Input Tax Credit and Appropriateness of Writ Jurisdiction

Legal Framework and Precedents: The Court extensively referred to its earlier judgment in a similar case involving fraudulent ITC claims, emphasizing the importance of protecting the GST regime from misuse. Section 16 of the CGST Act, which governs ITC, was highlighted as a critical provision intended to facilitate ease of doing business by allowing credit only on valid inputs.

Court's Interpretation and Reasoning: The Court underscored that fraudulent availment of ITC strikes at the root of the GST framework and imposes a significant burden on the exchequer. It observed that such matters require detailed factual inquiry and cannot be resolved in writ jurisdiction, which is not designed for adjudicating complex factual disputes or assessing evidence.

Key Evidence and Findings: The impugned order detailed a complex web of transactions involving non-existent firms and collusion to claim ITC without actual supply of goods or services. The Petitioner and related parties were alleged to have orchestrated these transactions to wrongfully avail ITC benefits.

Application of Law to Facts: The Court applied the principle that writ jurisdiction should not be exercised to shield unscrupulous litigants or to circumvent the statutory appeal process. The Petitioner's contentions on merits and penalties were to be addressed in appeal.

Treatment of Competing Arguments: While the Petitioner argued against the allegations and penalties, the Court held that such factual disputes must be resolved by the appellate authority and not through writ petitions.

Conclusion: The Court declined to interfere in writ jurisdiction given the serious nature of allegations and the availability of a full-fledged statutory appeal remedy.

Significant Holdings and Core Principles Established:

"A writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation."

"The entire concept of Input Tax Credit, as recognized under Section 16 of the CGST Act is for enabling businesses to get input tax on the goods and services which are manufactured/supplied by them in the chain of business transactions. The said facility... is a major feature of the GST regime, which is business friendly and is meant to enable ease of doing business."

"Such misuse, if permitted to continue, would create an enormous dent in the GST regime itself."

"The exercise of writ jurisdiction ought not be exercised by the Court to support unscrupulous litigants."

"When such transactions are entered into, a factual analysis would be required to be undertaken and the same cannot be decided in writ jurisdiction."

"The persons involved in such transactions cannot be allowed to try different remedies before different forums, as it would result in multiplicity of litigation and contradictory findings."

Final Determinations:

- The writ petition challenging the impugned order was dismissed for lack of exceptional circumstances and availability of statutory appeal remedy.

- The issue of consolidated SCNs and impugned orders for multiple financial years remains open and is to be decided in a pending related case and on appeal.

- Allegations of fraudulent ITC availment require detailed factual adjudication by the appellate authorities and are not amenable to writ jurisdiction interference.

- The Petitioner is entitled to pursue statutory remedies under Section 107 of the CGST Act without prejudice to the observations made by the Court.

The core legal questions considered by the Court in this matter are:

(i) Whether a writ petition under Article 226 of the Constitution of India is maintainable in a case where the Petitioner challenges an Order-in-Original passed by the tax authorities, especially when an alternate statutory remedy under Section 107 of the Central Goods and Services Tax (CGST) Act, 2017 is available.

(ii) Whether the issuance of a consolidated Show Cause Notice (SCN) and consequent impugned order covering multiple financial years is legally permissible and valid.

(iii) Whether the Petitioner's challenge to the impugned order, which alleges fraudulent availment of Input Tax Credit (ITC), can be entertained in writ jurisdiction or should be relegated to the appellate authority.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Maintainability of Writ Petition under Article 226 in presence of Alternate Remedy under Section 107 CGST Act

Relevant legal framework and precedents: The Court extensively relied on the Supreme Court's ruling in the case of Assistant Commissioner of State Tax v. M/s Commercial Steel Limited, which clarified that writ petitions under Article 226 are maintainable only under exceptional circumstances such as breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction, or challenge to the vires of the statute or delegated legislation. The existence of an alternate statutory remedy is not an absolute bar but ordinarily, the statutory remedy must be availed first.

Court's interpretation and reasoning: The Court found that none of the exceptional circumstances justifying writ jurisdiction were present in the instant case. There was no violation of natural justice since the notice was duly served. The Court emphasized that the assessment of facts and merits of the case is to be conducted by the appellate authority under Section 107 of the CGST Act, which provides a full-fledged remedy.

Key evidence and findings: The impugned order arose from a Show Cause Notice alleging fraudulent availment of ITC to the tune of Rs. 6,12,530/-. The Petitioner challenged the order via writ petition instead of pursuing the statutory appeal mechanism.

Application of law to facts: Given the availability of the statutory remedy and absence of exceptional circumstances, the Court held that the writ petition was not maintainable. The Petitioner was directed to pursue the grievance through the appellate authority.

Treatment of competing arguments: The Petitioner's contention that the writ petition was appropriate was rejected on the ground that the factual and legal issues raised are to be examined by the appellate authority and not in writ jurisdiction.

Conclusions: The writ petition was not maintainable, and the Petitioner was relegated to the statutory appellate remedy under Section 107 of the CGST Act.

Issue (ii): Legality of Consolidated Show Cause Notice and Impugned Order for Multiple Financial Years

Relevant legal framework and precedents: The Court acknowledged that the issue of issuing consolidated SCNs and orders for multiple financial years is currently under consideration in a separate writ petition titled Quest Infotech Pvt. Ltd. & Anr. v. Union of India.

Court's interpretation and reasoning: The Court refrained from making any conclusive observations on this issue and stated that the decision in the pending writ petition would bind future proceedings, including any appeals filed by the Petitioner against the impugned order.

Key evidence and findings: The impugned order was issued on a consolidated basis covering multiple financial years, which forms the basis of one of the Petitioner's challenges.

Application of law to facts: Since the issue was sub judice in another matter, the Court did not interfere and left the matter open for adjudication in the pending case.

Treatment of competing arguments: The Court did not entertain the Petitioner's arguments on this point in the present writ petition, deferring to the outcome of the other case.

Conclusions: No interference was made on the consolidated SCN issue; the Petitioner may raise this issue in appeal or rely on the forthcoming decision in the related case.

Issue (iii): Appropriateness of Exercising Writ Jurisdiction in Cases Alleging Fraudulent Availment of Input Tax Credit

Relevant legal framework and precedents: The Court referred to its earlier decision in Mukesh Kumar Garg v. Union of India, where it was held that writ jurisdiction should not ordinarily be exercised in cases involving fraudulent availment of ITC, given the serious nature of the allegations and the potential impact on the GST regime. The CGST Act's Section 16 provides for ITC as a business-friendly incentive, but misuse of this facility undermines the tax system.

Court's interpretation and reasoning: The Court emphasized that the allegations against the Petitioner involved a complex network of firms allegedly created for fraudulent ITC claims without actual supply of goods or services. It noted that the impugned order was detailed and involved demands and penalties imposed on multiple connected entities.

Key evidence and findings: The Department alleged collusion and fraudulent ITC claims amounting to substantial sums, which strike at the root of the GST input credit mechanism.

Application of law to facts: The Court held that such factual and complex issues require detailed adjudication by the appellate authority rather than being resolved in writ jurisdiction. It also highlighted the risk of multiplicity of litigation and contradictory findings if writ petitions were entertained in such matters.

Treatment of competing arguments: The Petitioner's attempt to challenge the order via writ petition was rejected, with the Court observing that writ jurisdiction should not be used to support unscrupulous litigants or to bypass statutory remedies.

Conclusions: The Court declined to exercise writ jurisdiction in this matter and directed the Petitioner to avail the statutory appellate remedy.

3. SIGNIFICANT HOLDINGS

The Court's crucial legal reasoning is encapsulated in the following verbatim excerpts:

"The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation."

"In the present case, none of the above exceptions was established... The assessment of facts would have to be carried out by the appellate authority."

"The entire concept of Input Tax Credit... is meant as an incentive for businesses... This facility... has been misused by various individuals... Such misuse, if permitted to continue, would create an enormous dent in the GST regime itself."

"The Court, in exercise of its writ jurisdiction, cannot adjudicate upon or ascertain the factual aspects pertaining to what was the role played by the Petitioner, whether the penalty imposed is justified or not... The persons, who are involved in such transactions, cannot be allowed to try different remedies before different forums, inasmuch as the same would also result in multiplicity of litigation and could also lead to contradictory findings."

Core principles established include:

- Writ jurisdiction under Article 226 is to be exercised sparingly and only in exceptional circumstances, especially when alternate statutory remedies exist.

- Allegations of fraudulent availment of ITC require detailed factual adjudication by the designated appellate authorities and are not suitable for resolution via writ petitions.

- Consolidated SCNs and orders for multiple financial years remain a live issue pending adjudication in other proceedings and do not warrant interference in the present writ petition.

- The integrity of the GST regime and the Input Tax Credit mechanism must be protected from misuse, and judicial intervention should not facilitate circumvention of statutory procedures.

Final determinations on each issue:

- The writ petition challenging the impugned order is dismissed for lack of maintainability in the absence of exceptional circumstances.

- The Petitioner is directed to avail the statutory remedy of appeal under Section 107 of the CGST Act.

- No interference is made with the issuance of consolidated SCN and impugned order for multiple financial years; the Petitioner may raise this issue in appeal or rely on the outcome of the pending related case.

The core legal questions considered by the Court in this judgment relate primarily to procedural aspects in the handling of Goods and Services Tax (GST) litigation before the High Court. The issues include:

• Whether the personal hearing notices were duly communicated to the petitioner in GST-related writ petitions.
• The procedural adequacy and effectiveness of communication mechanisms employed by the GST Department in litigations, particularly regarding service of notices and written submissions.
• The feasibility and appropriateness of disposing of GST-related procedural issues at the first hearing itself.
• The necessity and formulation of Standard Operating Procedures (SOPs) for the GST Department to streamline litigation processes and ensure timely and proper service of notices and instructions to counsels.
• The institutional responsibility of the GST Department and the Registry to ensure efficient coordination and communication in GST litigation matters.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Communication of Personal Hearing Notices and Procedural Adequacy

Relevant legal framework and precedents: The Court's approach is grounded in principles of natural justice and procedural fairness, which require that parties be given adequate notice of hearings and opportunities to present their case. The GST procedural rules and the High Court's supervisory jurisdiction over administrative actions underpin the analysis.

Court's interpretation and reasoning: The Court emphasized the importance of ensuring that personal hearing notices are effectively communicated to petitioners. It directed the GST Department to place on record proof of communication through the GST portal, including screenshots and other documentary evidence. The Court acknowledged the prevalence of procedural grievances in GST litigation, such as non-receipt of notices and non-communication of replies, and recognized that these issues could be resolved expeditiously if proper instructions were given to departmental counsels.

Key evidence and findings: The petitioner was directed to provide evidence of uploading written submissions on the GST portal, while the Department was required to demonstrate the manner in which personal hearing notices were served. This exchange was intended to clarify procedural compliance and identify any lapses.

Application of law to facts: By requiring documentary proof from both parties, the Court sought to ensure transparency and accountability in procedural communications. This approach aligns with the principles of natural justice, ensuring that petitioners are not prejudiced by procedural failures.

Treatment of competing arguments: While the petitioner's non-receipt of notices was a concern, the Court balanced this against the Department's obligation to demonstrate due process. The Court's directions sought to resolve disputes on procedural grounds without delving into substantive merits prematurely.

Conclusions: The Court concluded that procedural issues such as noncommunication of personal hearing notices should be addressed promptly and could be disposed of at the first hearing if the Department's counsels received appropriate instructions.

Issue 2: Disposal of Procedural GST Matters at the First Hearing

Relevant legal framework and precedents: The Court's inherent powers under the High Court rules and the need for judicial efficiency inform this issue. The GST laws and procedural rules also emphasize timely resolution of disputes.

Court's interpretation and reasoning: The Court observed that a significant number of GST writ petitions raise procedural issues that do not require extended adjudication. It held that such matters could be disposed of at the first date itself, provided the Department's counsels were properly instructed and available to address these issues.

Key evidence and findings: The Court noted the volume of GST-related litigation and the commonality of procedural grievances. It proposed deputing at least two officers from the litigation section of the GST Department to coordinate and provide instructions expeditiously.

Application of law to facts: This pragmatic approach aimed to reduce judicial backlog and ensure that procedural grievances are resolved swiftly, thereby streamlining the litigation process.

Treatment of competing arguments: The Court's directive implicitly balanced the need for procedural fairness with judicial economy, encouraging the Department to enhance its responsiveness.

Conclusions: The Court mandated the deputation of officers from the GST Department's litigation section to facilitate prompt disposal of procedural issues at the initial hearing.

Issue 3: Formulation and Implementation of Standard Operating Procedures (SOPs) for GST Litigation

Relevant legal framework and precedents: Administrative law principles and the Court's supervisory role over government departments require that litigations be managed efficiently and fairly. SOPs are a recognized tool for institutionalizing best practices.

Court's interpretation and reasoning: The Court considered the SOPs submitted by the GST Department, noting that two drafts had been prepared but further streamlining was underway. The Court directed the Department to finalize and place the SOP on record, emphasizing the need for clear instructions on accepting advance service of writ petitions and the delegation of authority to officers to provide immediate instructions to counsels.

Key evidence and findings: The Department submitted two documents: a communication from the Principal Chief Commissioner and a set of legal SOP instructions. These documents included the creation of dedicated email addresses for various Commissionerates and the Principal Chief Commissioner's office to facilitate advance service of writ petitions and coordination.

Application of law to facts: The SOPs institutionalize a framework for timely communication and coordination between the Registry, the GST Department, and its counsels. By mandating the mention of specific Commissionerates in writ petitions and publishing dedicated email addresses, the SOPs enhance procedural clarity and reduce delays.

Treatment of competing arguments: The Court's approach reflects a collaborative effort to improve administrative efficiency without compromising petitioners' rights. It also addresses practical difficulties faced by litigants and counsels in serving and receiving notices.

Conclusions: The Court accepted the SOPs on record and directed their implementation, including publication of email addresses in the cause list and circulars, to ensure all stakeholders are informed and procedural compliance is enhanced.

Issue 4: Institutional Responsibility and Coordination between Registry and GST Department

Relevant legal framework and precedents: The Court's supervisory jurisdiction over court procedures and administrative processes supports the need for institutional coordination to ensure efficient justice delivery.

Court's interpretation and reasoning: The Court directed the Registry to implement the communication from the Principal Chief Commissioner, including the use of dedicated email addresses and marking of fresh matters to appropriate counsels. The Court emphasized that this coordination is essential for expeditious processing of GST writ petitions.

Key evidence and findings: The communication detailed the email IDs of the legal sections of various CGST Commissionerates and the Principal Chief Commissioner's office, along with their physical addresses. This infrastructure facilitates proper service and prompt response.

Application of law to facts: By mandating the Registry's active role in implementing these measures, the Court ensures that procedural mechanisms are institutionalized and that litigants and counsels have clear channels for communication.

Treatment of competing arguments: The Court's directions reflect a consensus on the need for systemic improvements and do not entertain contrary positions that would delay procedural compliance.

Conclusions: The Court concluded that the Registry must actively assist the GST Department in implementing the communication and SOPs to improve litigation management.

3. SIGNIFICANT HOLDINGS

"In the opinion of this Court, such cases can be disposed of on the first date itself subject to the concerned Department giving instructions to its Counsels."

"It is impressed upon the Principal Chief Commissioner of CGST & Central Excise, Delhi Zone ... to consider deputing at least two officials from the litigation section, who can coordinate with the various Commissionerates of the GST department and give instructions to the Department's counsels, in an expedited manner."

"The Registry (listing and filing) shall publish the email addresses of all the Commissionerates and the dedicated email address in the cause list, along with the direction, in the form of a circular, that names of the specific Commissionerates need to be mentioned in the fresh writ petitions filed, so that all Counsels and litigants are given notice of these email addresses and other requisite information."

Core principles established include:

• Procedural issues in GST writ petitions, especially those relating to communication of notices, must be addressed promptly and can be disposed of at the earliest opportunity.
• Effective institutional mechanisms, including deputation of officers and creation of dedicated communication channels, are essential for ensuring procedural fairness and judicial efficiency in GST litigation.
• Standard Operating Procedures are vital for streamlining litigation management, ensuring advance service of writ petitions, and facilitating prompt instructions to departmental counsels.
• The Registry and the GST Department must coordinate closely to ensure proper marking, service, and handling of GST writ petitions.

Final determinations on each issue reflect the Court's commitment to procedural fairness, judicial economy, and administrative efficiency, culminating in the disposal of the petition with directions for implementation of the SOPs and improved coordination mechanisms.

The core legal questions considered by the Court in this matter are:

• Whether the rejection of the rectification application without affording a hearing to the Petitioner violates the proviso 3 to Section 161 of the DGST Act, 2017, which mandates adherence to the principles of natural justice where the rectification adversely affects any person.
• The scope and applicability of Section 161 of the DGST Act concerning rectification of errors apparent on the face of the record, particularly the procedural requirements when such rectification impacts the rights of the applicant adversely.
• The legal consequences of rejecting a rectification application without providing reasons or an opportunity of hearing, especially in light of precedents from the Delhi and Madras High Courts.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the rejection of the rectification application without hearing violates principles of natural justice under proviso 3 to Section 161 of the DGST Act

Relevant legal framework and precedents: Section 161 of the DGST Act, 2017 empowers the authority to rectify any error apparent on the face of the record within specified time limits. The third proviso to Section 161 states:

"Provided also that where such rectification adversely affects any person, the principles of natural justice shall be followed by the authority carrying out such rectification."

This proviso mandates that if the rectification order is likely to adversely affect a person, the authority must follow principles of natural justice, which includes affording an opportunity of hearing.

The Court relied heavily on a recent decision by the Madras High Court in Suriya Cement Agency v. State Tax Officer, where it was held that rejection of a rectification application without hearing or reasoned order violates Section 161's proviso. The Madras High Court emphasized that when a rectification application is rejected adversely affecting the applicant, the applicant must be given an opportunity to be heard. The absence of any reasoning or hearing renders the order liable to be set aside.

The Delhi High Court's own prior decisions (e.g., in HVR Solar Private Limited and Sri Ganpati Enterprises) have consistently held that the third proviso to Section 161 imposes a mandatory procedural safeguard of hearing before adverse rectification orders are passed.

Court's interpretation and reasoning: The Court interpreted the third proviso as a clear statutory mandate to ensure natural justice is observed in rectification proceedings that could negatively impact the applicant. The Court found that the impugned rectification order rejected the Petitioner's application without any hearing or consideration of the Petitioner's submissions, thereby violating this statutory requirement.

Key evidence and findings: The impugned order dated 1st May 2025 rejected the Petitioner's rectification application summarily, without affording a hearing or providing reasons. The Petitioner contended that this was contrary to the proviso 3 to Section 161. The Respondent argued that the Petitioner had been given full opportunity in the main proceedings and that the rectification was dismissed as no error was found on the face of the record.

Application of law to facts: The Court found that the absence of a hearing or any reasoned order in the rectification proceedings, which adversely affected the Petitioner, was a clear breach of the principles of natural justice as mandated by proviso 3 to Section 161. The fact that the Petitioner had opportunities in the main proceedings was not sufficient to dispense with the requirement of hearing in the rectification process, especially when the rectification order was adverse.

Treatment of competing arguments: The Respondent's contention that no hearing was necessary because the rectification was dismissed on merits without error was rejected. The Court held that the statutory provision is explicit and mandatory in requiring a hearing when the rectification adversely affects the applicant, regardless of whether the main proceedings had earlier afforded opportunities.

Conclusion: The rejection of the rectification application without hearing violated proviso 3 to Section 161. The impugned order was set aside, and the Petitioner was directed to be afforded a hearing before a fresh decision is taken.

Issue 2: The procedural requirements and scope of Section 161 of the DGST Act regarding rectification of errors apparent on the face of the record

Relevant legal framework: Section 161 allows rectification of errors apparent on the face of the record within six months from the date of the order, with a three-month window for filing rectification applications. The section also carves out exceptions for clerical or arithmetical errors, which can be corrected beyond six months.

Court's interpretation and reasoning: The Court reiterated that rectification under Section 161 is a limited remedy to correct errors apparent on the face of the record and is not a forum for re-agitating substantive issues. However, when the rectification adversely affects a person, the authority must follow the principles of natural justice, including hearing the affected party.

Key findings: The Court noted that the impugned order lacked any explanation or reasoning as to why the rectification was rejected, which is inconsistent with the requirement to consider the rectification application on its merits.

Application of law to facts: The Court applied the above principles and found that the authority failed to comply with the procedural safeguards mandated by Section 161, particularly the third proviso, when rejecting the Petitioner's rectification application.

Treatment of competing arguments: The Respondent's argument that no error was apparent on the face of the record and hence no rectification was warranted was accepted in principle but rejected on the procedural ground that the Petitioner should have been heard before rejection.

Conclusion: The authority must follow the procedural requirements of Section 161, including affording hearing where the rectification is adverse, and provide reasoned orders. The impugned order failed these requirements.

3. SIGNIFICANT HOLDINGS

"Provided also that where such rectification adversely affects any person, the principles of natural justice shall be followed by the authority carrying out such rectification."

"When an order is being made adverse to the assessee, then he should be given an opportunity of being heard when the rectification adversely affects any person. The principles of natural justice had been inbuilt by way of the 3rd Proviso to Section 161."

"If pursuant to a Rectification Application, if a rectification is made and if it adversely affects the assessee, Proviso 3 contemplates an opportunity of hearing to be given."

"When a Rectification Application is made at the instance of assessee and the rectification is being sought to be rejected without considering the reasons for rectification or by giving reasons as to why such rectification could not be entertained, it is also imperative that the assessee be put on notice."

The Court conclusively held that the impugned rectification order rejecting the Petitioner's application without affording a hearing or providing reasons was contrary to the provisions of Section 161 of the DGST Act. The order was set aside, and the Petitioner was directed to be given a hearing and the rectification application to be decided afresh in accordance with law.

The core legal questions considered by the Court include:

- Whether the extension of the limitation period for adjudication under the Central Goods and Services Tax Act, 2017 (CGST Act) by Notification No. 56/2023 - Central Tax (impugned notification) was valid and within the scope of Section 168A of the CGST Act.

- Whether the impugned notification, issued long after the COVID-19 pandemic, could be justified as an exercise of power under Section 168A, which permits extension of limitation only under "force majeure" circumstances.

- Whether the impugned Show Cause Notice (SCN) and demand order were issued beyond the prescribed period of limitation and thus liable to be quashed.

- Whether the Petitioner was denied due opportunity to file reply and to appear for personal hearing before passing the impugned order.

- The effect of conflicting decisions of various High Courts on the validity of Notification No. 56/2023 and related notifications extending limitation periods under the CGST Act.

- The impact of pending Supreme Court proceedings on the validity of the impugned notifications and the consequent proceedings initiated thereunder.

2. ISSUE-WISE DETAILED ANALYSIS

Validity of Notification No. 56/2023 under Section 168A of the CGST Act

The relevant legal framework is Section 168A of the CGST Act, which empowers extension of limitation for adjudication of show cause notices and passing of orders, but only under specific conditions, notably "force majeure". The Petitioner contended that the impugned notification extending limitation was ultra vires as it was issued well after the COVID-19 pandemic and did not satisfy the "force majeure" criteria.

The Court noted that this issue was under active consideration before multiple High Courts and the Supreme Court. The Allahabad and Patna High Courts had upheld the validity of similar notifications, whereas the Guwahati High Court quashed Notification No. 56/2023. The Telangana High Court had expressed doubts about the validity but did not conclusively rule on the vires. This cleavage of judicial opinions underscored the complexity of the issue.

The Supreme Court had admitted Special Leave Petitions (SLPs) challenging these notifications and issued notices, with interim orders preserving the status quo. The Supreme Court's order specifically highlighted the question whether the time limit for adjudication under Section 73 of the CGST Act and corresponding State GST Acts could be extended by such notifications under Section 168A.

The Court emphasized that the notifications purported to be issued on the recommendation of the GST Council, but in the case of Notification No. 56/2023, the recommendation was made subsequent to issuance, thus violating procedural mandates under Section 168A. This procedural irregularity raised serious questions on the validity of the notification.

Application of Limitation and Procedural Fairness in Passing Orders

On facts, the Petitioner argued that the impugned SCN dated 4th December, 2023 was uploaded on the 'Additional Notices Tab' of the GST Portal and thus did not come to their knowledge in a timely manner. Although a reminder was issued on 19th January, 2024, the Petitioner's reply dated 28th January, 2024 sought adjournment citing personal family reasons. The Adjudicating Authority, however, passed the impugned order on 16th April, 2024 without granting any adjournment or personal hearing.

The Court found that the Petitioner was denied a fair opportunity to be heard, which is a fundamental principle of natural justice. The absence of personal hearing and the ex-parte passing of the order were significant procedural lapses. The Court also observed that the Petitioner had filed a reply and sought adjournment, which was not considered.

Effect of Pending Supreme Court Proceedings and Conflicting High Court Judgments

The Court acknowledged the ongoing Supreme Court proceedings (SLP No. 4240/2025) which were determinative of the validity of the impugned notifications. It noted the judicial discipline observed by other High Courts, such as the Punjab and Haryana High Court, which refrained from expressing opinions on the validity of Section 168A and related notifications pending Supreme Court adjudication.

In light of this, the Court refrained from deciding the vires of the impugned notifications and instead disposed of the petitions with liberty to the parties to pursue remedies post the Supreme Court's final decision.

Relief and Directions

Given the procedural deficiencies and the pendency of the Supreme Court proceedings, the Court set aside the impugned order dated 16th April, 2024 and relegated the matter back to the Adjudicating Authority. The Petitioner was granted an opportunity to file a reply to the impugned SCN by 15th July, 2025 and to appear personally at a hearing to be scheduled by the Adjudicating Authority.

The Court directed that notice of the personal hearing be communicated to the Petitioner through specified email and phone contact details and that access to the GST Portal be ensured for the Petitioner to facilitate filing of replies and access to notices.

The Court explicitly left open the question of validity of the impugned notifications, stating that the Adjudicating Authority's order would be subject to the Supreme Court's final decision in the pending SLP.

3. SIGNIFICANT HOLDINGS

The Court held:

"The challenge to the impugned notification is pending before the Supreme Court and the fact that the Petitioner has not been provided an opportunity to file a reply or attend a personal hearing, this Court is inclined to give an opportunity to the Petitioner to file a reply and appear personally to make the submissions before the Adjudicating Authority."

"The impugned order is set aside and the matter is relegated back to the concerned Adjudicating Authority. The Petitioner is permitted to file a reply to the impugned SCN by 15th July, 2025. Upon filing of such reply, the Adjudicating Authority shall provide the Petitioner a personal hearing."

"All the rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable filing of reply and access to the notices and related documents."

"It is made clear that the issue in respect of the validity of the impugned notifications is left open and the order of the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in S.L.P No 4240/2025."

The Court established the core principle that procedural fairness, including the opportunity to file replies and personal hearings, is indispensable even where the validity of the notification extending limitation is under challenge before a higher forum. It also underscored the necessity of judicial discipline by deferring substantive adjudication on the validity of the notifications to the Supreme Court, given conflicting High Court decisions.

The core legal questions considered by the Court include:

- Whether the petitioner is liable to pay interest under Section 50 read with Section 73(1) of the CGST Act, 2017/TNGST Act, 2017 for delay in filing GSTR 3B returns despite having deposited the tax amount in the Electronic Cash Ledger on time.

- Whether the levy of interest and penalties imposed by the respondent is contrary to the provisions of the CGST Act, 2017 and TNGST Act, 2017.

- Whether the principles of natural justice were violated in passing the impugned order.

- The applicability and interpretation of Rule 88B(1) of the C.G. & S.T. Rules, 2017, specifically regarding the effect of crediting tax amounts in the Electronic Cash Ledger on the calculation of interest.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Liability to pay interest for delay in filing GSTR 3B returns despite timely tax deposit in Electronic Cash Ledger

Relevant legal framework and precedents:

The Court referred to Section 50 read with Section 73(1) of the CGST Act, 2017/TNGST Act, 2017, which govern the levy of interest on delayed payment of tax. Additionally, Rule 88B(1) of the C.G. & S.T. Rules, 2017 was pivotal, which states:

"Provided that where any amount has been credited in the Electronic Cash Ledger as per provisions of sub-section (1) of section 49 on or before due date of filing the said return, but is debited from the said ledger for the payment of tax while filing the said return after the due date, the said amount shall not be taken into consideration while calculating such interest if the said amount is lying in the said ledger from the due date till the date of its debit at the time of filing return."

The Court also relied on a precedent decision of this Court in the case of M/s.Eicher Motors Limited Vs. The Superintendent of GST and Central Excise Range-II, which held that "the interest liability stops accruing from the date on which the amount due is deposited in the tax payer's electronic cash ledger."

Court's interpretation and reasoning:

The Court interpreted Rule 88B(1) as clarificatory, emphasizing that if the tax amount has been credited to the Electronic Cash Ledger on or before the due date, the delay in debiting this amount while filing the return should not attract interest. The Court reasoned that since the tax liability was discharged by depositing the exact amount in the Electronic Cash Ledger timely, the interest should not continue to accrue even if the return filing was delayed.

Key evidence and findings:

The petitioner demonstrated that due to technical glitches in the GST portal, specifically the non-acceptance of the digital signature of the Managing Director (initially) and later due to the retirement of the Managing Director and consequent expiry of the digital signature, they were unable to upload GSTR 3B returns from July 2017 to July 2019. Despite this, the petitioner deposited the exact tax liability in the Electronic Cash Ledger on time every month.

The respondent acknowledged the deposit of the entire tax amount but contended that interest was due because the returns were filed late and the cash ledger was debited only in August 2019.

Application of law to facts:

Applying Rule 88B(1) and the precedent, the Court found that since the amounts were credited timely to the Electronic Cash Ledger, the petitioner's interest liability should cease from the date of such deposit. The delay in debiting the ledger during return filing did not justify the continuation of interest liability.

Treatment of competing arguments:

The respondent's argument that interest was due because of late filing of returns and delayed debiting of the cash ledger was rejected by the Court based on the statutory provision and binding precedent.

Conclusion:

The Court concluded that the petitioner is not liable to pay interest for the period of delay in filing returns, as the tax amounts were deposited in the Electronic Cash Ledger on or before the due dates.

Issue 2: Validity of levy of penalties and other payments

Relevant legal framework:

Provisions under the CGST Act, 2017 and TNGST Act, 2017 relating to penalty and other payments for non-compliance or delayed compliance.

Court's interpretation and reasoning:

The Court clarified that its decision was limited to the issue of interest and did not extend to other penalties or payments. If there was any non-payment of tax on or before the due date, the respondent was free to take appropriate action in accordance with law.

Application of law to facts:

Since the petitioner had deposited the tax amounts timely, the question of penalty was not directly addressed. The Court left the issue open for the respondent to act if any other violations were found.

Conclusion:

The Court did not interfere with the levy of penalties or other payments, leaving it to the respondent's discretion to act as per law.

Issue 3: Alleged violation of principles of natural justice

The petitioner contended that the impugned order was passed contrary to principles of natural justice.

Court's consideration:

The Court did not find any specific argument or evidence indicating violation of natural justice principles in the impugned order. The petitioner had been given opportunity to raise objections and the respondent had considered the same before passing the order.

Conclusion:

No violation of natural justice principles was found or addressed as a separate issue by the Court.

3. SIGNIFICANT HOLDINGS

- "The interest liability stops accruing from the date on which the amount due is deposited in the tax payer's electronic cash ledger."

- Rule 88B(1) of the C.G. & S.T. Rules, 2017 is clarificatory in nature and provides that where tax amounts are credited to the Electronic Cash Ledger on or before the due date, delay in debiting the ledger during return filing shall not attract interest.

- The Court quashed the impugned order dated 30.12.2023 to the extent of levying interest alone, holding that the petitioner is not liable to pay interest for delay in filing GSTR 3B returns when tax was deposited timely in the Electronic Cash Ledger.

- The Court left open the respondent's right to take appropriate action regarding any other payments or penalties for non-payment on or before the due date.

The Court considered two core legal questions arising from the appeal under Section 260A of the Income Tax Act, 1961:

(a) Whether the Income Tax Appellate Tribunal (ITAT) was justified in allowing the assessee's claim for deduction under Section 10AA of the Act despite the assessee's failure to file the statutory audit report in Form 56F within the prescribed time limitRs.

(b) Whether the ITAT was correct in holding that the filing of Form 56F is directory (i.e., not mandatory) in nature, relying on a recent decision (CIT (E) v. Gujarat Energy Development Agency), contrary to the Supreme Court's directions in Principal Commissioner of Income Tax v. Wipro Limited and its review petition, which emphasized that the twin conditions of furnishing the declaration in writing and before the due date for filing the return under Section 139(1) must be strictly complied withRs.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Justification of Allowing Deduction under Section 10AA Despite Delay in Filing Form 56F

Relevant Legal Framework and Precedents: Section 10AA of the Income Tax Act provides for deduction of profits and gains derived from units established in Special Economic Zones (SEZs). A procedural requirement under this section mandates filing of Form 56F (audit report) along with the return of income. The prescribed due date for filing Form 56F is statutory and is generally coupled with the due date for filing the return under Section 139(1).

Precedents such as Principal Commissioner of Income Tax v. Wipro Limited have emphasized the importance of strict compliance with procedural requirements, including timely filing of declarations to claim deductions. However, the facts in Wipro involved a change in the assessee's stand during assessment proceedings, which is distinguishable.

Court's Interpretation and Reasoning: The Court noted that the assessee had filed the return of income within the prescribed time, claiming the deduction under Section 10AA. The delay pertained only to the filing of Form 56F, which was submitted approximately 50 days after the due date. The Court observed that the assessee had fulfilled the substantive requirements for claiming the deduction and had only committed a procedural lapse by filing Form 56F late.

The Court found no statutory provision explicitly barring the filing of Form 56F after the due date. The delay was condoned by the lower authorities, and the CIT(Appeals) and ITAT had held that the delay was a minor technical breach and not fatal to the claim. The Court agreed with this view, emphasizing that the substantial right of the assessee to claim deduction should not be defeated by a procedural lapse, especially when the audit report was eventually filed.

Key Evidence and Findings: The assessee's return was filed on 16.10.2018, within the due date, with the deduction claimed. Form 56F was filed on 20.12.2018, after the prescribed date of 31.10.2018. The CIT(A) and ITAT allowed the claim, noting that this was the sixth assessment year for which the deduction was claimed and allowed, indicating consistency in the assessee's position.

Application of Law to Facts: The Court applied the principle that procedural requirements should not override substantive rights unless the statute expressly provides otherwise. The late filing of Form 56F was treated as a procedural lapse that did not invalidate the deduction claim, especially since the audit report was ultimately furnished.

Treatment of Competing Arguments: The Revenue's argument that the deduction should be disallowed due to non-compliance with the prescribed time limit for filing Form 56F was rejected. The Court distinguished the facts from Wipro Limited, where the assessee had altered its claim during assessment proceedings, unlike the present case where the claim was made timely and consistently.

Conclusions: The Court concluded that the Tribunal was justified in allowing the deduction under Section 10AA despite the delayed filing of Form 56F, as the delay was a procedural lapse and did not defeat the substantial claim.

Issue 2: Nature of Filing Form 56F - Directory or Mandatory

Relevant Legal Framework and Precedents: The question revolved around whether filing Form 56F is mandatory (mandatory compliance is required for claiming deduction) or directory (non-filing or delayed filing does not invalidate the claim). The Supreme Court in Wipro Limited had held that the twin conditions of furnishing the declaration in writing and before the due date for filing the return under Section 139(1) must be satisfied to claim deduction under Section 10B(8), which is analogous to Section 10AA.

However, the ITAT relied on a recent decision in CIT (E) v. Gujarat Energy Development Agency, which held that filing of Form 56F is directory in nature.

Court's Interpretation and Reasoning: The Court observed that the facts in Wipro Limited were different and involved a change in the assessee's claim during assessment, whereas in the present case, the assessee claimed the deduction in the original return and only delayed filing Form 56F. The Court noted that no provision explicitly bars acceptance of Form 56F after the due date, and the delay was condoned.

The Court agreed with the ITAT's approach that the filing of Form 56F is directory, meaning that a procedural lapse in filing does not automatically disentitle the assessee from claiming the deduction, provided the substantive conditions are met.

Key Evidence and Findings: The assessee filed Form 56F after the due date but before the assessment was finalized. The CIT(A) and ITAT had condoned the delay and allowed the deduction claim. The Court found no material to hold that the delay was fatal.

Application of Law to Facts: The Court applied the principle that procedural requirements which are not expressly made mandatory by statute should be treated as directory. Since the assessee fulfilled the substantive conditions and eventually furnished Form 56F, the delay was not fatal.

Treatment of Competing Arguments: The Revenue's reliance on Wipro Limited to argue mandatory compliance was rejected on the ground of factual distinction. The Court upheld the ITAT's reliance on the Gujarat Energy Development Agency decision, which treated the filing as directory.

Conclusions: The Court held that the ITAT was justified in treating the filing of Form 56F as directory and allowing the deduction despite the delay.

3. SIGNIFICANT HOLDINGS

The Court held:

"Assessee having duly fulfilled the substantial requirement as well as the procedural requirement, though

The core legal question considered by the Court was whether the entrance fee (life membership fee) received by the appellant club amounts to a revenue receipt or a capital receipt for the purposes of income tax assessment. Specifically, the Court examined:

• Whether the one-time, non-refundable, non-transferable life membership fees collected by the club should be treated as capital receipts and thus not taxable as income.
• Whether the nature of the appellant's business as a private club and the characteristics of the membership fees affect the classification of such receipts.
• The applicability of the principle of mutuality and precedents concerning taxation of club membership fees.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Classification of Life Membership Fees as Capital or Revenue Receipt

Relevant Legal Framework and Precedents: The Court examined the nature of the receipt under the Income Tax Act and relied on judicial precedents to determine whether the entrance fees constitute capital or revenue receipts. The Bombay High Court's decision in Principal Commissioner of Income-Tax vs. Royal Western India Turf Club Limited (RWITC) was a key precedent, which held that sums paid by members to acquire rights in a club are capital receipts. This ruling was itself based on the earlier Bombay High Court judgment in CIT v. Diners Business Services Pvt. Ltd (DBS), and the Supreme Court had dismissed Special Leave Petitions challenging these findings, thereby affirming the legal position.

Additionally, the Tribunal had relied on Patna High Court judgments in CIT v. Beldih Club and CIT v. United Club, which took a different view, treating such fees as revenue receipts, but those cases involved considerations of mutuality and exemption from income tax, which were not directly applicable here.

Court's Interpretation and Reasoning: The Court recognized that the appellant is a private club engaged in providing services to its members, who must pay a monthly subscription to avail themselves of these services. However, before availing such services, a member must pay a one-time life membership fee, which is non-refundable and non-transferable. The Court emphasized that this fee is a payment to acquire a right or interest in the club, and not a payment for the regular services rendered.

The Court distinguished the monthly subscription fees, which are rightly treated as revenue receipts since they represent payment for ongoing services, from the entrance fees, which represent a capital receipt because they confer a lasting right or interest in the club.

The Court found the reasoning in RWITC persuasive, noting that the Bombay High Court had held that entrance fees paid to acquire membership rights are capital receipts. The Court rejected the reliance on the Patna High Court decisions because those cases involved claims of exemption based on mutuality, which was not the case here. The appellant did not claim exemption but rather disputed the classification of the fees as revenue receipts.

Key Evidence and Findings: The factual matrix showed that the appellant received substantial sums as life membership fees over several assessment years, which were non-refundable and non-transferable. The appellant's business model involved a one-time entrance fee plus monthly subscriptions. The non-refundable nature of the entrance fee and the fact that it conferred a membership right were critical facts supporting the capital receipt classification.

Application of Law to Facts: Applying the legal principles from RWITC and DBS, the Court held that the entrance fees are capital receipts because they are payments to acquire rights in the club, not payments for services rendered. The monthly subscription fees, on the other hand, are revenue receipts. The Court thus concluded that the Income Tax Appellate Tribunal erred in treating the entrance fees as revenue income.

Treatment of Competing Arguments: The appellant argued for capitalisation of the entrance fees, while the Revenue contended they were revenue receipts. The Tribunal had sided with the Revenue relying on Patna High Court precedents. The Court rejected the Tribunal's reliance on those precedents, distinguishing the factual and legal basis of those cases. The Court also noted that the appellant did not claim exemption under mutuality, which was a key factor in the Patna High Court decisions.

3. SIGNIFICANT HOLDINGS

The Court held that:

"Any sum paid by a member to acquire the rights of the club is a capital receipt."

This principle was reaffirmed following the Bombay High Court's decision in RWITC, which was upheld by the Supreme Court by dismissal of Special Leave Petitions.

The Court concluded that the one-time, non-refundable, and non-transferable life membership fees received by the appellant club constitute capital receipts and therefore should not be treated as revenue income for taxation purposes.

Accordingly, the substantial question of law was answered in the negative, and the appeals were allowed, reversing the orders of the Income Tax Appellate Tribunal and lower authorities.

- Whether the learned ITAT was correct in treating the reassessment order passed under Section 147 read with Section 143(3) of the Income Tax Act, 1961 as void ab initio, despite the Assessing Officer (AO) having formed a reason to believe regarding escapement of income based on enquiries conducted by the Department and statements of directors of investor companies.

- Whether the reopening of assessment beyond four years from the end of the relevant assessment year was valid under the proviso to Section 147 of the Act, considering the requirement of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment.

- Whether the reasons recorded by the AO for reopening the assessment were based on tangible and credible material or were vague, general, and not confronted to the assessee, thus amounting to a change of opinion or mere suspicion.

- Whether the addition made under Section 68 of the Act on account of unexplained share capital and share premium received by the assessee was justified on merits.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Reopening of Assessment under Section 147 beyond Four Years

Relevant Legal Framework and Precedents: Section 147 of the Income Tax Act empowers the AO to reopen an assessment if he has reason to believe that income has escaped assessment. However, the proviso to Section 147 restricts reopening beyond four years from the end of the relevant AY unless there is failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The Supreme Court in several decisions has held that reopening cannot be based on mere suspicion or change of opinion but must be founded on tangible and credible material. The AO must have bona fide and reasonable reasons to believe, not mere reasons to suspect.

Key precedents include CIT v. Multiplex Trading and Industrial Co. Ltd., which emphasized that reopening after four years requires specific failure of disclosure by the assessee, and Raymond Woollen Mills Ltd. v. ITO, which held that sufficiency of material for reopening is to be judged at the stage of reopening and not on merits.

Court's Interpretation and Reasoning: The Court examined the reasons recorded by the AO for reopening, which referred to enquiries by the Investigation Wing and statements of directors of investor companies alleging accommodation entries and bogus share capital. However, the reasons were found to be vague and general, lacking specific details such as names of companies, dates of enquiries, and particulars of incriminating material. The AO did not independently verify or confront the assessee with the material. The reasons also contained factual inaccuracies, including incorrect figures relating to share capital and premium.

The Court noted that the AO had already scrutinized the share capital details during the original assessment, where the assessee had furnished comprehensive documents including share application forms, PAN, bank statements, and income tax returns of the investing companies. No adverse inference was drawn at that stage, and the AO had accepted the genuineness of the documents.

Application of Law to Facts and Treatment of Competing Arguments:

The Revenue argued that the reopening was based on new tangible material unearthed during post-search investigations and statements of directors admitting to accommodation entries, thus satisfying the requirement of reason to believe. The assessee countered that no incriminating material was found during the search relating to share capital, and all relevant facts were disclosed during the original assessment. The Court found that the AO's reasons did not specify how the assessee had failed to disclose material facts and were based on unverified and untested information. The material was not confronted to the assessee, violating principles of natural justice.

Conclusion: The Court upheld the findings of the CIT(A) and ITAT that the reopening was invalid as the statutory conditions under the proviso to Section 147 were not satisfied. The reassessment order was rightly declared void ab initio.

Issue 2: Formation of Reason to Believe by AO Based on Investigation Wing Material

Relevant Legal Framework and Precedents: The AO must form a reason to believe based on credible and tangible material, not mere suspicion or information that is not independently verified. The Supreme Court in The Income-Tax Officer, I Ward, District VI, Calcutta v. Lakhmani Mewal Das clarified that reasons to believe cannot be conflated with reasons to suspect. Material must have a live nexus with the belief that income has escaped assessment.

Court's Interpretation and Reasoning: The AO relied heavily on information and statements obtained by the Investigation Wing, including assertions that many investor companies were paper companies providing accommodation entries. However, the Court found that the AO did not apply his own mind or independently verify the material. Statements of three persons recorded by the Investigation Wing, which formed the basis for adverse inference, were not confronted to the assessee, and no opportunity for cross-examination was provided, violating principles of natural justice and rendering such material inadmissible.

Application of Law to Facts and Treatment of Competing Arguments:

The Revenue contended that the investigation material and statements were sufficient to form a reason to believe. The assessee argued that such material was not part of the original assessment and was not confronted to them, thus not forming a valid basis for reopening. The Court agreed with the assessee, emphasizing that the AO's reliance on untested and unverified information without application of mind or confrontation was improper.

Conclusion: The Court found that the AO's reasons were based on vague, unverified material and mechanical acceptance of investigation reports, which was insufficient to form a valid reason to believe for reopening.

Issue 3: Whether the Assessee Failed to Disclose Fully and Truly all Material Facts Necessary for Assessment

Relevant Legal Framework and Precedents: The proviso to Section 147 requires that for reopening beyond four years, the assessee must have failed to disclose fully and truly all material facts. The Supreme Court in New Delhi Television Ltd. v. DCIT held that if the assessee has disclosed all primary facts and the AO has formed a view, reopening on the same material is impermissible. Sabh Infrastructure Ltd. v. ACIT emphasized that reasons must specify which facts were not disclosed.

Court's Interpretation and Reasoning: The Court noted that during the original assessment, the assessee had submitted extensive documentation regarding share capital and shareholders, which was accepted by the AO. The AO did not record any dissatisfaction or suspicion during the original assessment. The reasons for reopening did not specify any particular material fact that was not disclosed. The CIT(A) and ITAT found no failure on the part of the assessee to make full and true disclosure.

Application of Law to Facts and Treatment of Competing Arguments:

The Revenue argued that the disclosure was not true and complete as the nature of transactions was misrepresented, relying on precedents where false or misleading disclosures justified reopening. The assessee submitted that all relevant facts were disclosed and verified during the original assessment and that the reopening was an attempt to revisit the same material. The Court held that without specific identification of undisclosed facts, reopening was impermissible.

Conclusion: The Court upheld the concurrent findings that the assessee had not failed to disclose material facts fully and truly, and thus reopening was invalid.

Issue 4: Merits of Addition under Section 68 on Account of Unexplained Share Capital

Relevant Legal Framework and Precedents: Section 68 deals with unexplained cash credits, including share capital, where the assessee must explain the nature and source of such credits. The genuineness of the shareholders and creditworthiness is relevant. Judicial precedents hold that documentary evidence must be tested and the source of funds traced.

Court's Interpretation and Reasoning: The CIT(A) and ITAT examined the evidence submitted by the assessee, including incorporation documents, PANs, bank statements, income tax returns, and confirmations from shareholders. They found that many of the investor companies were registered NBFCs with RBI, had filed returns, and existed prior to the assessee's incorporation. The AO did not conduct independent inquiries with the respective AOs or ROC to disprove the genuineness. The statements relied upon by the AO were not confronted to the assessee and were recorded outside assessment proceedings without opportunity for cross-examination.

Application of Law to Facts and Treatment of Competing Arguments:

The Revenue contended that the share capital was from accommodation entry providers and thus bogus, relying on statements and investigation reports. The assessee countered that the evidence showed genuine investors and that no incriminating material was found during search or investigation. The Court found the AO's reliance on untested statements and vague enquiries insufficient to sustain the addition.

Conclusion: The addition under Section 68 was rightly deleted by the CIT(A) and upheld by the ITAT due to lack of substantiation and failure to comply with principles of natural justice.

3. SIGNIFICANT HOLDINGS

"The reasons recorded by the AO did not specify which material facts the assessee did not disclose during the original proceedings. The reasons contain scanty, general, vague observations and do not refer to any objective, tangible relevant material. No specific evidence has been highlighted to arrive at an opinion that either the companies are bogus and non-existent or the money received represented unaccounted income."

"The AO did not apply his own mind to the information and examine the foundation / accuracy of such material of the information. The AO accepted the plea on the basis of vague information in a mechanical manner. The reasons recorded reflect that the AO did not independently apply his mind to the information received from the Investigation Wing to arrive at a belief that income of the assessee company had escaped assessment."

"Any material collected at the back of the assessee and not confronted and no opportunity given to cross examine the same, such material cannot be relied upon against the assessee."

"Where the assessee had disclosed all primary facts and the AO had formed his view, subsequent proceedings on the same material are not sustainable merely because the revenue now seeks to draw a different inference."

"The reopening of assessment beyond four years from the end of the relevant assessment year requires a clear and specific recording of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment."

Final determinations:

- The reassessment order passed under Section 147 read with Section 143(3) was void ab initio due to invalid assumption of jurisdiction.

- The AO did not have tangible and specific reasons to believe that income had escaped assessment beyond the material considered in the original assessment.

- The assessee had fully and truly disclosed all material facts necessary for assessment during the original proceedings.

- The addition under Section 68 on account of unexplained share capital was not sustainable on merits due to lack of substantiation and procedural infirmities.

- The appeal filed by the Revenue was dismissed.

The core legal questions considered by the Court in this matter are:

(i) Whether, on the facts and circumstances of the case, the Income Tax Appellate Tribunal (ITAT) was justified in upholding the order of the Commissioner of Income Tax (Appeals) (CIT(A)) in quashing the assessment order on the ground that the Assessing Officer (AO) had no power to assume jurisdiction under Section 147 of the Income Tax Act, 1961 (the Act)Rs.

(ii) Whether the ITAT was justified in holding that the amendment to Section 149 of the Act by the Finance Act, 2012, which extended the limitation period for initiation of reassessment proceedings to 16 years, is prospective in nature, despite the Explanation to Section 149(3) categorically making the amendment retrospectiveRs.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Jurisdiction of the Assessing Officer under Section 147 to reopen assessment

Relevant legal framework and precedents: Section 147 of the Income Tax Act empowers the Assessing Officer to reopen an assessment if there is reason to believe that income chargeable to tax has escaped assessment. However, the power to reopen is circumscribed by strict limitation periods and procedural safeguards. The CIT(A) and ITAT relied on the precedent set by this Court in Brahm Datt v. Assistant Commissioner of Income-Tax & Others, which dealt with similar facts and held that the AO's jurisdiction to reopen the assessment was barred by limitation and hence invalid.

Court's interpretation and reasoning: The Court noted that the AO received information from the Foreign Tax and Tax Research (FT&TR) department regarding a joint foreign bank account and significant credit entries, which prompted issuance of notice under Section 148. However, the notice was issued after the expiry of the statutory limitation period applicable prior to the 2012 amendment. The CIT(A) and ITAT found that the AO's assumption of jurisdiction under Section 147 was without lawful authority as the notice was barred by limitation.

Key evidence and findings: The key factual finding was that the AO's notice under Section 148 was issued on 30.03.2019 for AY 2002-03, well beyond the original limitation period of 4 years or 6 years (depending on circumstances) prior to the 2012 amendment. The AO's reliance on information from FT&TR was not sufficient to extend the limitation period retrospectively.

Application of law to facts: Applying the legal principles and the limitation provisions extant at the relevant time, the Court concurred with the CIT(A) and ITAT that the reopening was barred by limitation and the AO had no jurisdiction to assume reassessment proceedings under Section 147.

Treatment of competing arguments: The Revenue contended that the AO's jurisdiction was valid and that the amendment to Section 149 by the Finance Act, 2012, extending limitation to 16 years, applied retrospectively, thereby validating the reopening. The Court, however, deferred this question to the larger bench, noting that the issue was pending adjudication in connected matters and that the ITAT had correctly followed the existing precedent in Brahm Datt.

Conclusions: The Court upheld the ITAT's decision that the AO's reopening of assessment was barred by limitation and that the AO had no jurisdiction under Section 147 in the facts of the case.

Issue (ii): Retrospective applicability of the amendment to Section 149 by Finance Act, 2012

Relevant legal framework and precedents: Section 149 of the Income Tax Act prescribes the limitation period for reopening assessments. The Finance Act, 2012 amended Section 149 to extend the limitation period from 6 years to 16 years for certain cases involving income escaping assessment by reason of failure to disclose fully and truly material facts. The Explanation to Section 149(3) states that the amendment shall be deemed to have come into force on 01.04.1962, thereby indicating retrospective operation. The question of whether this amendment applies retrospectively or prospectively has been a subject of judicial debate and was referred to a larger bench in connected matters.

Court's interpretation and reasoning: The ITAT held that the amendment was prospective in nature, rejecting the Revenue's contention that the Explanation rendered it retrospective. The Court in the present case observed that the issue was pending before a larger bench and that the ITAT's approach was consistent with the then prevailing judicial view.

Key evidence and findings: The Court noted the literal language of the Explanation to Section 149(3), which explicitly states retrospective effect, but also recognized the complexity and conflicting judicial opinions on the matter. The Court acknowledged that the larger bench was seized of the issue in the connected batch of cases.

Application of law to facts: The Court refrained from expressing a definitive view on the retrospective applicability of the amendment, instead directing the present appeal to be heard along with the connected matters pending before the larger bench.

Treatment of competing arguments: The Revenue argued for retrospective application based on the Explanation, while the Assessee and the ITAT maintained that the amendment should be construed prospectively to avoid prejudice and to uphold principles of legal certainty. The Court did not resolve this conflict but deferred to the larger bench.

Conclusions: The Court held that the question of retrospective applicability of the amendment to Section 149 remains open and is to be decided by the larger bench. The present appeal was accordingly directed to be heard along with the connected matters raising identical issues.

3. SIGNIFICANT HOLDINGS

"Whether on facts and circumstances of the case, the Income Tax Appellate Tribunal was justified in upholding the order of the Commissioner of Income Tax (Appeals) in quashing the assessment order on the ground that the Assessing Officer has no power to assume jurisdiction under Section 147 of the Income Tax Act, 1961Rs."

The Court upheld the ITAT's decision affirming that the Assessing Officer's reopening of the assessment was barred by limitation and hence without jurisdiction.

"Whether on facts and circumstances of the case, the ITAT was justified in holding that amendment to Section 149, by Finance Act, 2012, which extended limitation for initiation for reassessment proceedings to 16 years is prospective in nature, ignoring the provisions of Explanation to Section 149(3) which categorically made the amendment retrospectiveRs."

The Court noted the conflicting judicial opinions and the pending larger bench decision, declining to express a final view and directing the present appeal to be heard along with the connected matters.

Core principles established include the strict adherence to limitation periods in reopening assessments under Section 147, the necessity of clear legislative intent for retrospective application of amendments, and the importance of judicial consistency through larger bench rulings on contentious issues.

The core legal questions considered by the Court were:

• Whether the Assessing Officer (AO) could assume jurisdiction under Section 153A of the Income Tax Act, 1961, and make additions in the absence of any incriminating material found during the search and seizure operations conducted under Section 132 of the Act.
• The validity of the assessment order passed under Section 153A read with Section 143(3) of the Act when no incriminating material was found during the search.
• The distinction between assumption of jurisdiction under Section 153A and Section 153C of the Income Tax Act in the context of search and seizure operations.
• Whether the impugned order of the Income Tax Appellate Tribunal (Tribunal) dismissing the Revenue's appeal and allowing the assessee's appeal on merits was legally sustainable.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Jurisdiction of AO under Section 153A in absence of incriminating material

Relevant legal framework and precedents: The Court examined Section 153A of the Income Tax Act, which empowers the AO to reassess income where a search or seizure under Section 132 has taken place. However, the jurisdiction is triggered only if incriminating material is found during the search. The Court relied heavily on the precedent set in Commissioner of Income Tax (Central)-III v. Kabul Chawla, a decision of this Court affirmed by the Supreme Court in Principal Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd., which held that jurisdiction under Section 153A cannot be assumed without incriminating material.

Court's interpretation and reasoning: The Court reiterated that the assumption of jurisdiction under Section 153A is contingent upon the discovery of incriminating material during the search. The mere fact of a search operation does not automatically confer jurisdiction to reassess if no incriminating evidence is found. The Court emphasized that this principle was consistently upheld in subsequent decisions including Saksham Commodities Limited v. Income Tax Officer Ward 22(1), Delhi & Anr., where the distinction between Sections 153A and 153C was also clarified.

Key evidence and findings: It was undisputed that the search and seizure operation under Section 132 was conducted on 25.04.2014, and no incriminating material was found in the assessee's case. The assessment order dated 30.12.2016 was based on entries in the books of accounts and unexplained investments, but these were not supported by any incriminating evidence obtained during the search.

Application of law to facts: Applying the settled legal position, the Court found that the AO lacked jurisdiction to reassess under Section 153A in the absence of incriminating material. The assessment order premised solely on the books of accounts without incriminating material was held to be invalid.

Treatment of competing arguments: The Revenue contended that the AO had jurisdiction and the additions were justified. However, the Court rejected this on the basis that the jurisdictional precondition of incriminating material was not met. The Tribunal's reliance on the binding precedent was upheld.

Conclusions: The Court concluded that the AO's jurisdiction under Section 153A was not validly assumed and the assessment order was accordingly unsustainable.

Issue 2: Validity of assessment order under Section 153A read with Section 143(3) without incriminating material

Relevant legal framework and precedents: Section 143(3) empowers the AO to make a detailed assessment, but when coupled with Section 153A, it is conditional upon the search yielding incriminating material. The Court referred to the CIT(A)'s and Tribunal's decisions, as well as the Supreme Court's ruling in Abhisar Buildwell, which clarified that assessments under Section 153A must be based on incriminating material found during search.

Court's interpretation and reasoning: The Court noted that while the CIT(A) had rejected the assessee's argument on jurisdiction, he deleted the additions on merits. The Tribunal allowed the assessee's application under Rule 27 to challenge the jurisdictional validity, ultimately rejecting the Revenue's appeal. The Court endorsed this approach, emphasizing that the absence of incriminating material vitiates the assessment.

Key evidence and findings: The assessment order included additions for unexplained investments in unquoted shares, but these were not supported by any incriminating evidence from the search. The search authorization existed, but no incriminating documents or materials were found.

Application of law to facts: The Court applied the principle that assessments under Section 153A must be predicated on incriminating material discovered during search. Since no such material was found, the additions and the assessment order were invalid.

Treatment of competing arguments: The Revenue's argument that the assessment was valid despite absence of incriminating material was rejected. The Court held that the law does not permit assumption of jurisdiction or additions without such material.

Conclusions: The assessment order passed under Section 153A read with Section 143(3) was invalid and unsustainable in law.

Issue 3: Distinction between Sections 153A and 153C in assumption of jurisdiction

Relevant legal framework and precedents: Section 153A deals with assessments where a search has been conducted in the assessee's case, while Section 153C applies when search is conducted in the case of another person but documents relating to the assessee are found. The Court referred to Saksham Commodities Limited v. Income Tax Officer Ward 22(1), Delhi & Anr., which clarified the difference in jurisdictional scope and procedural requirements between these sections.

Court's interpretation and reasoning: The Court reiterated that under Section 153A, in the absence of incriminating material, the AO can only reiterate the original assessment and cannot make fresh additions. This is distinct from Section 153C where the AO can make fresh assessments based on incriminating material found in the searched person's case.

Key evidence and findings: The Court noted that the present case fell under Section 153A and no incriminating material was found, thus limiting the AO's jurisdiction.

Application of law to facts: The Court applied the distinction to confirm that the AO's jurisdiction under Section 153A was not triggered absent incriminating material, unlike Section 153C cases.

Treatment of competing arguments: The Revenue did not dispute the factual matrix but argued for broader jurisdiction. The Court rejected this, adhering to the statutory scheme and judicial precedents.

Conclusions: The Court affirmed the principle that Section 153A jurisdiction is contingent on incriminating material, unlike Section 153C.

3. SIGNIFICANT HOLDINGS

The Court held:

"The assumption of jurisdiction under Section 153A of the Act would not be permissible absent any incriminating material."

"In cases covered under Section 153A of the Act, the Assessing Officer is required to reiterate the earlier assessment in the absence of any incriminating material."

"No substantial question of law arises for consideration of this Court in the present appeal."

Core principles established include:

• Jurisdiction under Section 153A is strictly dependent on the presence of incriminating material found during search and seizure operations.
• In the absence of such material, the AO cannot make fresh additions or reassess; only reiteration of the original assessment is permissible.
• The distinction between Sections 153A and 153C is critical in determining the scope of jurisdiction following search and seizure.

Final determinations:

• The appeal filed by the Revenue challenging the Tribunal's order was dismissed as unmerited.
• The impugned order upholding the invalidity of the assessment under Section 153A without incriminating material was affirmed.
• No substantial question of law

The Court considered the following core legal questions:

A. Whether the ITAT was justified in upholding the CIT(A)'s order relying on precedents that, according to the Revenue, had facts different from the present case (specifically, the judgments in CIT vs. Orient Craft Ltd. and CIT vs. Kelvinator of India Ltd.)Rs.

B. Whether the ITAT erred in upholding the CIT(A)'s order that found the Assessing Officer (AO) did not possess tangible material to initiate reassessment proceedings under Section 147 of the Income Tax Act, 1961, despite the presence of Form 26AS showing a purported escapement of incomeRs.

C. Whether the ITAT erred in upholding the CIT(A)'s quashing of the reassessment order without examining the facts and merits of the caseRs.

D. Whether the Revenue's reliance on extended limitation and the principle that any material giving reason to believe income has escaped assessment suffices to reopen assessment is legally sustainable in the facts of this caseRs.

2. ISSUE-WISE DETAILED ANALYSIS

Issue A and B: Reliance on Precedents (Orient Craft Ltd. and Kelvinator of India Ltd.)

The Revenue challenged the ITAT's reliance on these precedents, arguing that the facts in those cases differ materially from the present facts. The Court examined the applicability of these precedents in the context of the present facts.

Relevant legal framework involves the principle that reopening of assessment under Section 147 requires tangible material to form a reason to believe that income has escaped assessment. The Supreme Court and High Courts have consistently held that mere suspicion or change of opinion does not justify reopening.

The Court noted that the precedents relied upon emphasize the need for tangible material and reason to believe, not mere discrepancies or clerical errors. The Court found no error in the ITAT's reliance on these precedents, as the principles enunciated therein remain applicable despite factual differences.

The Court reasoned that the presence of duplicate entries in Form 26AS, which inflated the TDS figures, undermined the quality of the material relied upon by the AO. Hence, the factual distinctions did not detract from the legal principle that reopening requires credible and tangible material.

Issue C: Tangible Material for Reopening under Section 147

The AO initiated reassessment based on a mismatch between the salary income declared by the assessee and the TDS reflected in Form 26AS. The AO noticed duplicate entries in Form 26AS, which inflated the TDS amount, leading to a perceived difference in income.

The CIT(A) and ITAT found that the only material on record was Form 26AS, which contained apparent errors and duplicate entries. This, the Court held, could not constitute tangible material to form a reason to believe that income had escaped assessment.

The Court emphasized that the mere existence of Form 26AS with inflated TDS entries, which could be identified as erroneous on the face of it, does not justify reopening. The Court applied the legal standard that tangible material must be credible and reliable, not tainted by obvious errors.

The Court also rejected the Revenue's contention that the extended limitation period of six years applies simply because the return was not scrutinized under Section 143(3). It clarified that this issue was not directly in dispute but noted that the principle does not override the requirement of tangible material.

Issue D: Quashing of Reassessment Order Without Merits Examination

The Revenue contended that the CIT(A) and ITAT erred in quashing the reassessment order without examining the facts and merits. The Court rejected this contention, observing that the jurisdictional question of whether reassessment could be initiated was a preliminary and threshold issue.

The Court held that if the AO lacks tangible material to form a reason to believe, the reassessment proceedings are invalid at inception and must be quashed without delving into the merits.

This approach aligns with established jurisprudence that protects taxpayers from arbitrary reopening and ensures that reassessment is based on a sound foundation.

3. SIGNIFICANT HOLDINGS

The Court held:

"If there is material on record which on the face of it appears to be erroneous, the same cannot be considered as a tangible material for forming a belief that the assessee's income had escaped assessment."

"Given the fact that there were apparent errors in the Form 26AS and if the duplicate entries were eliminated, according to the AO, there was only a difference of Rs. 1926/- in the income of salary as returned by the assessee and as reflected in the Form 26AS; we are unable to accept that Form 26AS would furnish any reason for the AO to believe that the assessee's income had escaped assessment."

The Court reaffirmed the core principle that reopening of assessment under Section 147 requires tangible, credible material and cannot be based on mere discrepancies or erroneous documents.

It further established that reliance on precedents emphasizing this principle remains valid despite factual differences.

Finally, the Court concluded that the reassessment proceedings initiated on the basis of flawed Form 26AS entries lacked jurisdictional foundation and were rightly quashed by the CIT(A) and ITAT.

The core legal questions considered by the Court in this matter are:

• Whether the Assessing Officer (AO) was justified in suo motu withdrawing a clean assessment order passed under Section 147 of the Income Tax Act, 1961, and substituting it with an order raising a demand and initiating penalty proceedings.
• Whether the petitioner, a Non-Resident Indian (NRI), was entitled to credit for Tax Deducted at Source (TDS) deposited by the buyers against the sale of immovable property, despite the TDS being deposited under an incorrect form (Form 26QB applicable to resident Indians instead of Form 27Q applicable to NRIs).
• Whether the AO's refusal to grant TDS credit on the basis of procedural errors by the deductor (buyers) was legally sustainable.
• The validity and applicability of penalty proceedings initiated under Section 270A of the Income Tax Act in the context of the facts and timeline of the case.
• The procedural requirements and legal implications of correcting the TDS credit in cases where the deductor has used an incorrect form for deposit.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Legality of Suo Motu Withdrawal of Assessment Order under Section 147

Relevant Legal Framework and Precedents: Section 147 of the Income Tax Act permits reopening of assessments in cases where income has escaped assessment. However, the power to withdraw an assessment order suo motu is not expressly provided under the statute. The Court examined whether the AO had any legal basis to withdraw a clean assessment order without statutory grounds.

Court's Interpretation and Reasoning: The Court noted that the AO initially accepted the petitioner's return and passed a clean assessment order. Subsequently, the AO issued a computation sheet raising a demand and initiated penalty proceedings without furnishing reasons or statutory justification for withdrawing the earlier order. The Court found no provisions under the law permitting such suo motu withdrawal by the AO.

Key Evidence and Findings: The impugned communications dated 04.03.2025 indicated withdrawal of the clean assessment order and substitution with a demand notice and penalty initiation. The AO's counter affidavit did not provide statutory provisions authorizing the withdrawal but admitted the procedural irregularity.

Application of Law to Facts: The Court concluded that the AO's actions were legally untenable and amounted to non-application of mind to the facts, as the demand was raised on an erroneous premise.

Treatment of Competing Arguments: The Revenue sought time to file counter affidavit but failed to justify the withdrawal under any statutory provision. The Court rejected the AO's unilateral action.

Conclusion: The withdrawal of the assessment order by the AO was not legally permissible.

Issue 2: Entitlement to TDS Credit Despite Incorrect Form Used by Deductor

Relevant Legal Framework and Precedents: Under the Income Tax Act, TDS credit is granted to the deductee when tax is deducted and deposited by the deductor. Form 26QB is prescribed for TDS on property transactions involving resident Indians, while Form 27Q applies to NRIs. The correctness of the form impacts the crediting of TDS in the deductee's account.

Court's Interpretation and Reasoning: The Court observed that the buyers deducted and deposited the full TDS amount with the Government treasury, but erroneously filed the return under Form 26QB instead of Form 27Q. This procedural error by the buyers caused the credit to be reflected incorrectly in the petitioner's Form 26AS, showing only Rs. 2,00,000/- instead of the full withheld amount of Rs. 18,68,177/-.

Key Evidence and Findings: The petitioner's bank account received Rs. 1,81,31,823/- and the balance withheld amount was deposited by the buyers. The buyers admitted the error and attempted to correct the TDS challan. The AO's own records confirmed the deposit but denied credit due to the form mismatch.

Application of Law to Facts: The Court held that since the tax was deducted and deposited, the petitioner was entitled to the credit regardless of the procedural mistake by the deductor. The AO's refusal to grant credit solely based on the incorrect form was unjustified.

Treatment of Competing Arguments: The Revenue argued that consent from the buyers was necessary to correct the record and grant credit, citing internal SOP requirements. The Court questioned the necessity of buyers' consent, especially since the tax was deposited and the petitioner was the rightful deductee.

Conclusion: The petitioner was entitled to TDS credit for the full amount deposited, notwithstanding the incorrect form used by the buyers.

Issue 3: Validity of Penalty Proceedings under Section 270A

Relevant Legal Framework and Precedents: Section 270A provides for penalty for under-reporting or misreporting of income. However, its applicability depends on the assessment year and whether the return was filed within prescribed timelines.

Court's Interpretation and Reasoning: The penalty proceedings were initiated erroneously for AY 2016-17, relating to FY 2015-16, before the effective date of the relevant amendment (01.04.2017). The AO himself acknowledged the error and dropped the penalty proceedings.

Key Evidence and Findings: The counter affidavit and AO's order dated 12.03.2025 confirmed withdrawal of penalty proceedings.

Application of Law to Facts: The Court noted the inapplicability of penalty provisions to the facts and timeline of the case.

Treatment of Competing Arguments: The Revenue accepted the mistake and withdrew the penalty.

Conclusion: The penalty proceedings under Section 270A were not sustainable and were rightly dropped.

Issue 4: Procedural Requirements for Correction of TDS Credit and Role of Buyers' Consent

Relevant Legal Framework and Precedents: The Standard Operating Procedure (SOP) for correction of TDS credits requires certain formalities including buyers' consent and indemnity bonds to rectify errors in TDS returns.

Court's Interpretation and Reasoning: The Court found the Revenue's insistence on buyers' consent to be an impediment to correcting the record, especially since the tax was deposited and the petitioner was the legitimate recipient. The Court emphasized the need to prioritize substantive tax credit over procedural formalities.

Key Evidence and Findings: The buyers had attempted to correct the TDS challan but procedural requirements delayed crediting the petitioner.

Application of Law to Facts: The Court directed the Revenue to correct the record and grant credit without undue insistence on buyers' consent, given the peculiar facts.

Treatment of Competing Arguments: The Revenue's procedural concerns were overruled in light of the petitioner's entitlement and the absence of any dispute on the deposit of TDS.

Conclusion: The Revenue was directed to rectify the TDS credit and compute any refund due to the petitioner forthwith.

3. SIGNIFICANT HOLDINGS

"A plain reading of the impugned communications indicates that they seek to withdraw an assessment order passed under Section 147 of the Income Tax Act, 1961 and to substitute the same by converting a clean assessment order into one that raises the demand and, in relation thereto, seeks to initiate penalty proceedings. Prima facie, we find no provisions under the law that could have permitted the AO to suo moto withdraw an assessment order."

"Although a demand has been raised, it is ex facie erroneous, as it is on account of non-deposit of Tax Deducted at Source [TDS]. However, the TDS was deducted and deposited by the deductor. The only ground on which credit for the TDS has been denied to the petitioner is that the deductor has erroneously used an incorrect form which is applicable to a resident Indian instead of the one for an NRI."

"This indicates a complete non-application of mind to the facts of the present case."

"In the peculiar facts of this case, we consider it apposite to direct the Revenue to correct the record and reflect the TDS deposited by the buyers to the petitioner's credit under the return filed in the Form 26QB with effect from the date, the amount was deposited. The Revenue shall further compute the amount of the refund, if any, that may be due to the petitioner in accordance with law."

Core principles established include:

• The AO cannot withdraw a clean assessment order suo motu without statutory authority.
• Tax credit for TDS must be granted where tax has been deducted and deposited, notwithstanding procedural errors in filing of TDS returns by the deductor.
• Penalty proceedings under Section 270A are not applicable retrospectively before the effective date of the amendment.
• Procedural formalities such as buyer's consent cannot be allowed to frustrate the substantive right of the deductee to claim TDS credit.

Final determinations on each issue were:

• The impugned withdrawal of assessment order and demand notice were quashed.
• The petitioner was entitled to full credit of TDS deposited by the buyers despite the incorrect form used.
• Penalty proceedings under Section 270A were dropped.
• The Revenue was directed to correct the TDS record and grant consequential refund as per law.

The core legal questions considered by the Appellate Tribunal (AT) in these consolidated appeals pertain to the validity and correctness of revision orders passed under Section 263 of the Income Tax Act, 1961, for assessment years 2015-16 and 2017-18. Specifically, the issues are:

• Whether the amounts paid by the buyer directly to the confirming party, M/s Hemali Resorts Pvt. Ltd., form part of the consideration received or accruing to the assessee for the purpose of capital gains computation under Section 48 of the Act.
• Whether the Assessing Officer (AO) failed to make adequate inquiry into the taxability of these amounts, thereby rendering the original assessment orders erroneous and prejudicial to the interest of the Revenue, justifying revision under Section 263.
• Whether the invoking of Section 263 in the second revision orders was justified, considering the prior reassessment and examination of the same issue.
• The applicability of judicial precedents regarding enforceability of agreements to sell, accrual of income, and the twin conditions for invoking Section 263-namely, that the order must be erroneous and prejudicial to the Revenue.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether amounts paid by the buyer to the confirming party (Hemali Resorts Pvt. Ltd.) constitute consideration accruing to the assessee under Section 48 for capital gains computation.

Relevant legal framework and precedents: Section 48 of the Income Tax Act provides that capital gains are computed based on the full value of consideration received or accruing to the assessee. The principle of "real income" as opposed to "notional income" is well established in precedents such as K.P. Varghese v. ITO and Malabar Industrial Co. Ltd. v. CIT. The Supreme Court in Sanjeev Lal v. CIT has held that an agreement to sell confers enforceable rights, which can be assigned or transferred.

Court's interpretation and reasoning: The Tribunal noted that the assessee had valid, binding agreements to sell with Hemali Resorts Pvt. Ltd., which conferred enforceable contractual rights. Hemali Resorts assigned these rights to the final purchaser, M/s APG Intelli Homes Pvt. Ltd., who executed the final registered sale deeds. The amounts paid by the buyer directly to Hemali Resorts were pursuant to independent contractual arrangements for site development services and relinquishment of rights, and not received or receivable by the assessee.

Key evidence and findings: The assessee received substantial amounts through banking channels with appropriate Tax Deducted at Source (TDS) reflected in Form 26AS, confirming the genuineness and receipt of income. The differential amounts paid to Hemali Resorts were not routed through the assessee, and there was no evidence that these sums accrued to or were for the benefit of the assessee.

Application of law to facts: Since capital gains are to be computed on income actually received or accruing to the assessee, and the amounts paid to Hemali Resorts did not accrue to the assessee, these amounts cannot be included in the assessee's consideration. The Tribunal relied on the principle that payments made to a third party with pre-existing contractual rights do not automatically become part of the assessee's income unless legally accrued or received by the assessee.

Treatment of competing arguments: The Revenue argued that the absence of a registered deed between the assessee and Hemali Resorts negated enforceability of rights and that the arrangement was a device to divert income. The Tribunal rejected this, holding that the agreements to sell were binding and enforceable, and the confirming party was a genuine stakeholder entitled to compensation. The Revenue's contention that the entire sale consideration should be taxed in the assessee's hands was countered by the Tribunal's application of substance over form and the real income doctrine.

Conclusions: The Tribunal concluded that the amounts paid to Hemali Resorts Pvt. Ltd. did not constitute consideration accruing to the assessee and thus were not taxable as capital gains in the assessee's hands.

Issue 2: Whether the Assessing Officer failed to conduct adequate inquiry, rendering the assessment orders erroneous and prejudicial to the interest of the Revenue, justifying revision under Section 263.

Relevant legal framework and precedents: Section 263 allows revision of an assessment order if it is found to be erroneous and prejudicial to the interest of the Revenue. The Supreme Court in Malabar Industrial Co. Ltd. v. CIT emphasized that both conditions-"erroneous" and "prejudicial"-must coexist for valid exercise of jurisdiction under Section 263. The AO's duty is to examine material facts and make a reasoned order.

Court's interpretation and reasoning: The Tribunal examined the chronology of events, noting that the AO had earlier reopened and re-examined the assessment following a prior Section 263 order, culminating in a reassessment order dated 23.09.2021. This reassessment involved a comprehensive examination of the sale consideration, confirming party's role, and flow of funds, and resulted in no variation in income.

Key evidence and findings: The reassessment order under Section 143(3) read with Section 263 reflected detailed scrutiny of all relevant facts, including the payments made to Hemali Resorts. There was no fresh material or omission pointed out in the subsequent revision orders. The payments to Hemali Resorts had been separately taxed in their hands, eliminating any tax leakage.

Application of law to facts: Since the AO had already conducted a detailed inquiry and passed a reasoned reassessment order, the subsequent invocation of Section 263 without new material amounted to a mere change of opinion, which is impermissible. The Tribunal applied the twin conditions test and found that even if the initial order had some irregularity, there was no prejudice to the Revenue as the amounts in question were taxed elsewhere.

Treatment of competing arguments: The Revenue contended that the AO failed to scrutinize the full transaction, especially the amounts paid to Hemali Resorts, and that the confirming party was a device to divert income. The Tribunal rejected these arguments based on the comprehensive prior reassessment and the absence of any fresh material justifying reopening.

Conclusions: The Tribunal held that the original assessment orders were not erroneous or prejudicial to the Revenue and that the subsequent revision orders under Section 263 were invalid as they amounted to a change of opinion without fresh material.

Issue 3: Whether the invocation of Section 263 in the second revision orders was justified in light of prior reassessment and examination of the same issue.

Relevant legal framework and precedents: The principle that Section 263 cannot be invoked to simply revisit or re-decide an issue already examined in a prior reassessment is well established. The Supreme Court in Malabar Industrial Co. Ltd. v. CIT clarified that Section 263 is not a substitute for appeal or revision and cannot be used to overturn an order merely because the Revenue disagrees with the AO's findings.

Court's interpretation and reasoning: The Tribunal observed that the second revision orders under Section 263 were passed without any fresh material or omission and essentially sought to revisit the same issue already examined in the reassessment dated 23.09.2021. This constituted an impermissible change of opinion.

Key evidence and findings: The absence of any new evidence or failure by the AO to consider relevant facts in the second revision proceedings was critical. The prior reassessment had addressed the issue comprehensively, and the amounts paid to Hemali Resorts were found not to accrue to the assessee.

Application of law to facts: The Tribunal applied the principle that Section 263 cannot be invoked repeatedly on the same facts without fresh material, as this violates the settled legal position and leads to harassment of the assessee.

Treatment of competing arguments: The Revenue's reliance on the alleged failure of the AO to examine the full transaction was negated by the detailed reassessment order. The Tribunal found no justification for the second revision orders.

Conclusions: The second revision orders under Section 263 were quashed as they lacked legal validity and amounted to an impermissible change of opinion.

3. SIGNIFICANT HOLDINGS

o "When a third-party (confirming party) with a pre-existing contractual right receives payment for extinguishing its rights or rendering services, the same does not automatically become part of the assessee's consideration unless it was routed through or legally accrued to the assessee."

o "The twin conditions for invoking section 263 - namely 'erroneous' and 'prejudicial to the interest of the Revenue' - must coexist. Even assuming some irregularity in the AO's approach, there is no prejudice to the interests of Revenue, as the amount in question has been taxed in the hands of Hemali Resorts Pvt. Ltd."

o "The invocation of Section 263 cannot be justified where the Assessing Officer had already conducted a detailed inquiry and passed a reassessment order on the same issue, and the subsequent revision amounts to a mere change of opinion without any fresh material."

o "An agreement to sell confers enforceable rights under the Specific Relief Act, and payments made pursuant to such agreements to the confirming party are not taxable in the hands of the original seller unless they accrue to or are received by the seller."

o The final determinations were that the revision orders dated 20.03.2024 (AY 2015-16) and 17.03.2022 (AY 2017-18) under Section 263 were quashed, and both appeals by the assessee were allowed.

1. Whether the reopening of the assessment under section 147 of the Income Tax Act was valid and within jurisdiction.

2. Whether the addition of Rs. 43,19,771/- made by estimating profit at the rate of 9.29% was justified and legally sustainable.

3. Whether the estimated rate of profit of 9.29% was excessive and failed to reflect the real income earned by the assessee.

4. Whether the lower authorities erred in ignoring various submissions and explanations of the assessee, thereby breaching principles of natural justice.

5. Whether the levy of interest under sections 234A/B/C/D of the Income Tax Act was justified.

Issue 1: Validity of Reopening of Assessment under Section 147

The reopening notice under section 148 was issued after obtaining prior approval under section 151(1), and the assessee was served accordingly. The Assessing Officer (AO) initiated proceedings upon discovering alleged discrepancies in cash payments exceeding Rs. 20,000/-, and inconsistencies in sales turnover reported by the assessee.

The Court examined the legal framework governing reopening of assessments, which requires satisfaction of the AO based on tangible material indicating income has escaped assessment. The AO relied on the assessee's admission during the statement recorded under section 131, where the assessee claimed loss of sales and purchase bills due to natural causes, and the cash purchases exceeding the prescribed limit, which contravened section 40A(3).

The Court found that the AO had sufficient material and justification for reopening, including the discrepancy between declared turnover and audit report figures, and the cash purchase violations. Hence, the reopening was held valid and within jurisdiction.

Issue 2 and 3: Justification and Quantum of Addition by Estimation of Profit

The AO disallowed purchases amounting to Rs. 4,58,48,365/- due to contravention of section 40A(3), and estimated net profit at 9.29% on the turnover as per the audit report, resulting in an addition of Rs. 43,19,771/-.

The assessee challenged this estimation, contending that the 9.29% profit rate was excessive and did not reflect actual profits. The audit report submitted by the assessee indicated a gross profit/turnover ratio of 1.74% and net profit/turnover ratio of 1.10%, which was not disputed by the AO.

The Court scrutinized the AO's approach of rejecting the books of accounts under section 145(3) based on a mistaken assumption that the audited turnover of Rs. 4,64,94,148/- was Rs. 54,99,148/-. The Court observed that the AO failed to reconcile this discrepancy and did not consider the audit report's detailed profit calculations.

Applying the principle that estimation must be reasonable and based on reliable data, the Court held that the AO's estimation at 9.29% was arbitrary and excessive. The Court accepted the alternative calculation of 1.74% gross profit rate from the audit report as a more accurate reflection of the assessee's income.

Consequently, the Court allowed the alternative plea of the assessee and reduced the addition accordingly.

Issue 4: Alleged Breach of Principles of Natural Justice

The assessee argued that various submissions and explanations were ignored by the lower authorities, leading to a breach of natural justice. The Court noted that the assessee had ample opportunity to present evidence and explanations, including written submissions, bank statements, audit reports, and statements recorded under section 131.

The Court found no material to suggest denial of opportunity or procedural unfairness. The AO and CIT(A) had considered the submissions but reached conclusions based on their evaluation of facts and law. Hence, the claim of breach of natural justice was rejected.

Issue 5: Levy of Interest under Sections 234A/B/C/D

The issue regarding levy of interest was raised but not adjudicated upon by the Court, as it was not pressed or found necessary for determination in light of other findings.

Significant Holdings and Core Principles

The Court held that reopening of assessment under section 147 must be supported by tangible material indicating escapement of income, and prior approval under section 151(1) is mandatory. The reopening in this case complied with these requirements.

Regarding estimation of income, the Court emphasized that any estimation must be reasonable, based on reliable and undisputed data, and not arbitrary. The Court stated: "Merely on the ground that turnover as per audit report is Rs. 4,64,99,148/- has been mistakenly taken as sales turnover of Rs. 54,99,148/- and treating the same as total turnover over while rejecting the books of accounts is not justified on the part of the Assessing Officer."

The Court also reaffirmed that the assessee is entitled to have their submissions and evidences duly considered, and mere disagreement with the conclusions of the revenue authorities does not amount to breach of natural justice.

Final determinations:

• The reopening under section 147 was valid and upheld.
• The addition based on 9.29% profit estimation was excessive and set aside.
• The alternative estimation of profit at 1.74% as per audit report was accepted.
• Other grounds, including breach of natural justice and levy of interest, were dismissed or not adjudicated.
• The appeal was partly allowed accordingly.

1. Whether the Commissioner of Income-Tax (Appeals) (CIT(A)) was justified in admitting additional documentary evidence filed by the assessee during appellate proceedings without complying with the procedural safeguards mandated under Rule 46A of the Income Tax Rules, 1962.

2. Whether the CIT(A) was correct in estimating the assessee's income on a presumptive basis under Section 44AD of the Income Tax Act, 1961, at 8% of the gross receipts from the liquor business, instead of accepting the Assessing Officer's (A.O.) addition under Section 69A on unexplained cash deposits.

3. Whether the CIT(A) erred in accepting the assessee's claim regarding the quantum of cash deposits in the bank account, which was lower than the amount determined by the A.O.

4. Whether the CIT(A) erred in directing the A.O. to give credit for TCS/TDS amounts while giving effect to the order.

5. Whether the delay in filing the appeal by the assessee before the Tribunal should be condoned.

Issue-wise Detailed Analysis:

1. Admission of Additional Documentary Evidence by CIT(A) without Compliance of Rule 46A

Relevant Legal Framework and Precedents: Rule 46A of the Income Tax Rules, 1962, prescribes the conditions and procedure for admission of additional evidence by the Commissioner (Appeals). Sub-rule (1) restricts the appellant from producing evidence not produced before the A.O., except in specified circumstances. Sub-rule (2) requires the Commissioner to record reasons in writing for admitting such evidence. Sub-rule (3) mandates that the A.O. must be given a reasonable opportunity to examine the additional evidence and file objections before it is taken into account. Sub-rule (4) carves out exceptions where the Commissioner directs production of documents or examination of witnesses for disposal of appeal or substantial cause.

Court's Interpretation and Reasoning: The Tribunal observed that the assessee had failed to produce the relevant documents before the A.O., including bank statements, trading account, profit and loss account, and balance sheet, which were filed for the first time before the CIT(A). The CIT(A) admitted and relied upon these documents without providing the A.O. an opportunity to examine or object to them, and without recording reasons in writing as mandated by Rule 46A(2) and (3).

The Tribunal held that since the additional evidence was not filed pursuant to any direction by the CIT(A) (which would have invoked sub-rule (4)), the procedural safeguards under sub-rules (2) and (3) were mandatory. The failure to comply with these requirements rendered the CIT(A)'s order unsustainable.

Application of Law to Facts: The CIT(A) had admitted the additional documentary evidence filed by the assessee without affording the A.O. a reasonable opportunity to examine or rebut it, and without recording reasons in writing. This was a clear violation of Rule 46A. The Tribunal emphasized the mandatory nature of these procedural requirements to ensure fairness and proper adjudication.

Treatment of Competing Arguments: The Revenue contended that the CIT(A) erred in admitting the additional evidence without complying with Rule 46A. The assessee did not dispute the procedural lapse but relied on the documents to substantiate the source of cash deposits and income. The Tribunal sided with the Revenue, underscoring the importance of procedural compliance.

Conclusion: The Tribunal set aside the CIT(A)'s order and directed the CIT(A) to re-decide the appeal after complying with Rule 46A, including giving the A.O. a reasonable opportunity to examine the additional evidence and file objections, and recording reasons for admission in writing. The Tribunal also directed that the assessee be given a reasonable opportunity of being heard during the re-hearing.

2. Estimation of Income under Section 44AD at 8% of Gross Receipts

Relevant Legal Framework and Precedents: Section 44AD of the Income Tax Act provides a presumptive taxation scheme for small businesses, allowing income to be estimated at 8% of total turnover or gross receipts, unless the assessee declares a higher income. This provision is applicable where the business turnover does not exceed prescribed limits and the assessee maintains no audited accounts.

Court's Interpretation and Reasoning: The CIT(A) accepted the assessee's claim that the cash deposits related to the liquor trading business, supported by the turnover figures disclosed in the profit and loss account and balance sheet filed before him. However, since the assessee had not filed any return of income, nor had the books audited despite turnover exceeding prescribed limits, the CIT(A) found it appropriate to estimate income on a presumptive basis under Section 44AD at 8% of the gross receipts of Rs. 4.68 crores, amounting to Rs. 37,45,219/-.

Key Evidence and Findings: The assessee's filed documents before the CIT(A) showed a turnover of Rs. 4.68 crores and net profit of Rs. 13.91 lakhs, but these were not verifiable due to non-filing of returns and lack of audit. The A.O. had treated the entire cash deposits of Rs. 6.13 crores as unexplained under Section 69A. The CIT(A) accepted the assessee's revised cash deposit figure of Rs. 4.17 crores based on bank statements filed during appellate proceedings.

Application of Law to Facts: The CIT(A) applied Section 44AD presumptive rate to the gross receipts disclosed, thereby reducing the income estimation significantly from the A.O.'s addition. This approach balanced the need to tax unexplained cash deposits while recognizing the business activity and turnover claimed by the assessee.

Treatment of Competing Arguments: The Revenue challenged the CIT(A)'s estimation, contending that the entire cash deposits were unexplained and should be taxed accordingly. The assessee argued that the cash deposits were legitimate business receipts and supported by turnover and tax collected at source (TCS). The CIT(A)'s approach was a compromise, accepted by the Tribunal as reasonable, subject to procedural compliance regarding evidence admission.

Conclusion: The Tribunal did not disturb the CIT(A)'s estimation of income under Section 44AD at 8% of gross receipts, but remanded the matter for reconsideration after proper admission of evidence as per Rule 46A.

3. Quantum of Cash Deposits in Bank Account

Relevant Legal Framework and Precedents: The burden lies on the assessee to explain cash deposits in bank accounts. Section 69A treats unexplained cash deposits as income if the assessee fails to satisfactorily explain the source.

Court's Interpretation and Reasoning: The A.O. had taken the cash deposits as Rs. 6.13 crores, while the assessee claimed Rs. 4.17 crores based on bank statements filed before the CIT(A). The CIT(A) accepted the lower figure after examining the documents filed during appellate proceedings.

Application of Law to Facts: The acceptance of the lower figure was contingent upon the admissibility and verification of the bank statements, which were additional evidence not produced before the A.O. The Tribunal emphasized the need for procedural compliance before such evidence can be relied upon.

Treatment of Competing Arguments: The Revenue disputed the reduction in cash deposits, arguing that the entire amount should be treated as unexplained. The assessee relied on bank statements and business documents to justify the lower figure.

Conclusion: The Tribunal did not decide the quantum issue finally but linked it to the procedural issue of evidence admission, remanding for reconsideration after proper procedure.

4. Credit for TCS/TDS Amounts

Relevant Legal Framework and Precedents: Tax collected at source (TCS) and tax deducted at source (TDS) are to be credited against the tax liability of the assessee as per provisions of the Income Tax Act.

Court's Interpretation and Reasoning: The CIT(A) directed the A.O. to give credit for TCS/TDS of Rs. 4,08,648/- while giving effect to the order. The Tribunal did not find any infirmity in this direction and did not disturb it.

Application of Law to Facts: The credit was rightly given based on verifiable Form 26AS and other documents.

Conclusion: The Tribunal upheld the direction of credit for TCS/TDS.

5. Condonation of Delay in Filing Appeal

Relevant Legal Framework and Precedents: The Supreme Court has advocated a liberal and justice-oriented approach in condoning delays in filing appeals, especially where sufficient cause is shown.

Court's Interpretation and Reasoning: The assessee delayed filing the appeal by 54 days due to undergoing knee surgery. The Revenue did not oppose condonation. The Tribunal relied on Supreme Court precedent emphasizing liberal approach and condoned the delay.

Conclusion: Delay of 54 days in filing appeal was condoned.

Significant Holdings:

"The Joint Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Assessing Officer has been allowed a reasonable opportunity-(a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant."

"The failure of the CIT(A) to comply with the statutory obligation under Rule 46A by admitting additional documentary evidence without affording the Assessing Officer a reasonable opportunity to examine the same and without recording reasons in writing renders the order passed by him unsustainable."

"The profit and gains of the appellant's business can be justly estimated on a presumptive basis under Section 44AD at 8% of the total turnover/gross receipts where the books of accounts are not audited and returns not filed."

"Ignorance of law is no excuse; a bonafide belief that filing return was unnecessary because tax was collected at source does not absolve the assessee from statutory obligations."

"A liberal and justice-oriented approach should be adopted in condoning delay in filing appeal where sufficient cause is shown."

Final determinations:

- The CIT(A)'s order is set aside and remanded for fresh adjudication after compliance with Rule 46A regarding admission of additional evidence.

- The estimation of income under Section 44AD at 8% of gross receipts is a reasonable approach subject to procedural compliance.

- The quantum of cash deposits and credit for TCS/TDS are to be reconsidered in light of admissible evidence.

- Delay of 54 days in filing appeal by the assessee is condoned.

1. Whether the assessee accepted cash loans amounting to Rs. 1,90,00,000/- in contravention of section 269SS of the Act.

2. Whether the penalty under section 271D is justified based on the evidence on record, including incriminating documents seized during search and the statement of a third party, Shri Sachin Nahar.

3. Whether the statement of a third party, without corroborative evidence, can form a valid basis for imposing penalty under section 271D.

4. The applicability and interpretation of relevant legal provisions and precedents concerning acceptance of cash loans and imposition of penalty.

Issue-wise detailed analysis:

1. Acceptance of cash loan in violation of section 269SS

The legal framework is section 269SS of the Income Tax Act, which prohibits acceptance of loans or deposits of Rs. 20,000 or more otherwise than by account payee cheque, bank draft, or electronic clearing system. Section 271D prescribes penalty equal to the amount of such loan or deposit if the provisions of section 269SS are violated.

The incriminating material seized during the search at Shri Sachin Nahar's premises included documents showing cash loans of Rs. 1,90,00,000/- given to the assessee through Shri Sachin Nahar, along with interest payments made in the relevant financial years. Shri Sachin Nahar's statement recorded under section 132(4) and his cross-examination further identified the abbreviation 'Mantra' as 'Mantra Properties', the assessee firm. The assessee's authorized representative did not rebut this identification during cross-examination.

The Assessing Officer relied on these documents and statements to conclude that the assessee accepted cash loans exceeding the prescribed limit, thereby violating section 269SS. The penalty under section 271D was accordingly levied.

The Court observed that direct evidence such as photographs or videos of cash transactions is not a prerequisite for establishing acceptance of cash loans. The incriminating documents and un-rebutted statements form sufficient evidence.

2. Validity of penalty levy under section 271D based on evidence

The assessee challenged the penalty on the ground that the penalty was based solely on the statement of a third party, Shri Sachin Nahar, without concrete or corroborative evidence. The assessee argued that 'Mantra' could refer to a larger group and not specifically to Mantra Properties, and relied on precedents where penalties were deleted when based only on third-party statements.

The CIT(A) accepted the assessee's argument, holding that the statement of Shri Sachin Nahar, recorded more than four years after the search, was a general statement and not supported by corroborative evidence. The CIT(A) relied on the principle that presumption under section 132(4A) is rebuttable and applies only to the person in possession of the seized documents. Since the assessee was not the possessor of the documents, and no other evidence was available, the penalty was deleted.

The Tribunal, however, reversed the CIT(A)'s order. It emphasized that the penalty was not based merely on the statement of a third party but also on incriminating documents seized during search corroborating the cash loan transactions. The identification of 'Mantra' as Mantra Properties by Shri Sachin Nahar during cross-examination, unchallenged by the assessee's representative, was a critical evidentiary link. The Tribunal held that the CIT(A) erred in ignoring these facts and in requiring a higher standard of proof than warranted.

3. Treatment of third-party statements and corroborative evidence

The Tribunal distinguished the precedents cited by the assessee, noting that those cases involved penalties levied solely on third-party statements without corroboration, whereas in the present case, the incriminating documents seized during search support the statement of Shri Sachin Nahar.

The Tribunal underscored that the onus to disprove the identification of 'Mantra' as Mantra Properties lay with the assessee, which was not discharged. The failure to rebut the cross-examination testimony weakened the assessee's defense.

The Tribunal further opined that the CIT(A)'s requirement of "foolproof" evidence such as photographs or videos was unrealistic and not mandated by law. Documentary evidence and un-rebutted statements suffice to establish violation of section 269SS.

4. Application of law to facts and competing arguments

The Tribunal applied the statutory provisions of sections 269SS and 271D to the facts established by the search, seized documents, and statements. It found that the acceptance of cash loans exceeding Rs. 20,000/- was established beyond reasonable doubt.

The assessee's contention that the penalty was based on presumption and lacked concrete proof was rejected by the Tribunal, which held that the evidence was direct and corroborative.

The Tribunal also rejected the CIT(A)'s approach of requiring corroboration beyond the seized documents and third-party statement, emphasizing that the law does not demand such an onerous standard in penalty proceedings.

Significant holdings:

"On perusal of the above submission, it is seen that the assessee mainly contended that penalty has been initiated solely on the presumption that the abbreviation Mantra means 'Mantra Properties'. ... The above facts prove that the penalty was correctly initiated."

"From the plain reading of the above provisions, it is clear that the assessee has violated the aforesaid provisions of S.269SS of the Act by accepting loan in cash more than prescribed limit."

"In our opinion, there cannot be any foolproof evidence of giving or receiving money in cash such as photograph or video graph other than the entries found in the books of account."

"Since the AR of the assessee could not rebut the facts mentioned by Shri Sachin Nahar during the course of such cross examination, therefore, the finding of the Ld. CIT(A) that there is no concrete evidence that the impugned amount was in fact received in cash by the assessee firm is without any merit."

"The observations of the Ld. CIT(A) that the Assessing Officer does not have any other proof other than the statement of Shri Sachin Nahar is without any basis especially when the incriminating documents so seized from the premises of Shri Sachin Nahar gives the details of cash loans accepted by the assessee with the narration of amount taken and interest paid thereon."

"In view of the above discussion, it is proved that that the assessee has violated the provisions of S. 269SS of the Act without having any reasonable cause within the meaning of S.273B of the Act, making itself liable for levy of penalty u/s. 271D of the Act."

The Tribunal concluded that the penalty of Rs. 1,90,00,000/- levied under section 271D was justified and the order deleting the penalty by the CIT(A) was reversed. The appeal filed by the Revenue was allowed accordingly.

1. Whether the assessee company had commenced or set up its business during the relevant previous year, specifically on 11/08/2006, despite the absence of active business operations or revenue-generating activities.

2. Whether the expenditure claimed by the assessee during the year under consideration qualifies as deductible business expenditure under the Income Tax Act, 1961, given that the shares purchased were classified as investments and not stock-in-trade.

3. The correct interpretation and application of the concepts of "setting up" versus "commencement" of business for the purposes of taxation and allowance of business expenditure under the Act.

Issue 1: Determination of the Date of Setting Up or Commencement of Business

Legal Framework and Precedents: The Tribunal examined the definitions and provisions under sections 2(34), 3, 4, and 28(i) of the Income Tax Act, 1961. Section 2(34) defines "previous year," and the proviso thereto clarifies that for a newly set-up business, the previous year begins from the date of setting up the business. Section 28(i) taxes profits and gains of any business carried on during the previous year. The key legal principle is that the date of "setting up" the business, not necessarily the date of "commencement," determines the start of the previous year for tax purposes and the eligibility for claiming business expenditure.

Judicial precedents relied upon include the Bombay High Court decision in Western India Vegetable Products Ltd. v. CIT, which distinguished between "setting up" and "commencement" of business, holding that expenses incurred after setting up but before commencement are deductible. This principle was subsequently approved by the Supreme Court. The Delhi High Court in CIT v. Dhoomketu Builders and Development (P) Ltd. reinforced this distinction and emphasized that readiness to commence business activities constitutes setting up, even if actual revenue-generating operations have not yet begun. Similar ratios were cited from other Delhi High Court cases involving Hughes Escorts Communications Ltd., LG Electronics (India) Ltd., and ESPN Software India (P) Ltd.

Court's Interpretation and Reasoning: The Tribunal accepted that the assessee was incorporated on 14/06/2006 and obtained the certificate of commencement of business on 11/08/2006. The assessee raised funds through issuance of shares and made its first investment in the shares of its subsidiary on 31/08/2006. These acts demonstrated that the business was "set up" and ready to carry out its objects of investment in software companies.

The Tribunal emphasized that "setting up" means the business is established and ready to function, and that actual commencement of income-generating activities is not necessary for this determination. The readiness was evidenced by the bank statements showing receipt of funds, allotment of shares, and investment transactions. The Tribunal rejected the Revenue's argument that the absence of active business operations or classification of shares as investments negated the setting up of business.

Key Evidence and Findings: The Tribunal relied on documentary evidence including the certificate of incorporation, certificate of commencement, share allotment records, investment transactions, bank statements, notes to accounts, and the amalgamation approval by the High Court. These collectively demonstrated that the assessee had established its business and was operationally ready within the relevant financial year.

Application of Law to Facts: Applying the statutory provisions and judicial precedents, the Tribunal concluded that the assessee's business was set up on 11/08/2006, marking the start of the previous year for the purposes of income computation and allowance of business expenditure.

Treatment of Competing Arguments: The Revenue contended that mere classification of shares as investments and absence of active business activities precluded commencement or setting up of business. The Tribunal held that book entries alone do not determine tax treatment and that the substance of the transaction and readiness to carry on business are decisive. The Tribunal also noted that income or revenue generation is not a prerequisite to establish the setting up of business.

Conclusion: The Tribunal upheld the CIT(A)'s finding that the assessee had set up its business on 11/08/2006 and was entitled to claim expenditure incurred thereafter as business expenditure.

Issue 2: Allowability of Expenditure Claimed as Business Expenditure

Legal Framework and Precedents: Under the Income Tax Act, expenses incurred wholly and exclusively for the purpose of the business are deductible. The distinction between capital and revenue expenditure, and between business expenditure and investment-related expenses, is fundamental. The Tribunal referred to precedents including Kedarnath Jute Mfg. Co Ltd v. CIT, Sutlej Cotton Mills Ltd. v. CIT, and Asian Hotels Ltd. v. CIT, which establish that the tax treatment depends on the nature of income or expenditure and the provisions of the Act rather than mere accounting classification.

Court's Interpretation and Reasoning: The Tribunal observed that the assessee's business was that of an investment company engaged in acquiring shares of subsidiary companies. The expenditure incurred after the setting up of the business was related to the business of investing and thus qualifies as business expenditure. The Tribunal rejected the Revenue's contention that classification of shares as investments precluded the expenditure from being business expenditure.

Key Evidence and Findings: The Tribunal considered the financial statements, notes to accounts, and transaction details which showed that the expenses were incurred in connection with the business of investment. The Tribunal also noted that the assessee had raised funds and deployed them in investments consistent with its business objectives.

Application of Law to Facts: The Tribunal applied the principle that the tax treatment must follow the legal nature and purpose of the expenditure, not merely the accounting treatment. Since the business was set up and operational in making investments, related expenditures were rightly allowed as business expenses.

Treatment of Competing Arguments: The Revenue's argument that investment-related expenses are not business expenses was countered by the Tribunal's finding that the assessee's business itself was investment activity. The Tribunal emphasized that mere book classification cannot override the statutory provisions.

Conclusion: The Tribunal upheld the CIT(A)'s deletion of the disallowance and allowed the expenditure as deductible business expenditure.

Significant Holdings

The Tribunal preserved the following crucial legal reasoning:

"There is a clear distinction between 'commencement of business' and 'setting up of a business'. For income tax purposes, the 'setting up of the business' and not the 'commencement of business' is to be considered. When a business is established and is ready to commence business then it can be said that business that it is set up. There may, however, be an interval between 'setting up of the business' and 'commencement of the business' and all expenses incurred during that interval would be permissible deduction."

"The mere entries in the books of accounts of the Assessee are not determinative of ambit of taxation under the provision of Act. If an item of income/expenditure is taxable/deductible, the same must be taken into account as per the provision of the Act not as per the mere books entry."

Core principles established include:

• The date of setting up of business is the relevant date for determining the previous year and eligibility of business expenditure deduction under the Income Tax Act.
• Setting up of business means the business is established and ready to function, irrespective of actual commencement of revenue-generating activities.
• Expenditure incurred after the date of setting up is deductible as business expenditure if incurred wholly and exclusively for the business, even if the shares are classified as investments in the books.
• Accounting classification does not override the statutory provisions governing taxation and deduction of expenses.

Final determinations on the issues are:

(i) The assessee company had set up its business on 11/08/2006, the date of certificate of commencement of business, supported by investment activities and receipt of funds.

(ii) The expenditure incurred after the setting up of business is allowable as business expenditure under the Income Tax Act.

(iii) The appeal filed by the Department of Revenue against the CIT(A)'s order deleting the disallowance was dismissed for lack of merit.

The core legal questions considered by the Tribunal in these appeals relate primarily to the treatment of cash deposits made by the assessee during the demonetization period and the consequent assessment of income under the Income Tax Act, 1961. Specifically, the issues are:

• Whether the cash deposits made during the demonetization period (9.11.2016 to 31.12.2016) can be treated as unexplained income under section 69A of the Income Tax Act, 1961, or should be considered as business receipts.
• Whether the Assessing Officer (AO) was justified in estimating the net profit at 8% on the turnover for the financial year under section 44AD of the Act, especially when the assessee had not maintained books of account or filed returns.
• Whether the AO and Commissioner of Income Tax (Appeals) [CIT(A)] erred in treating part of the deposits during the demonetization period as undisclosed income while treating the balance deposits as business receipts.
• Whether the AO's best judgment assessment under sections 144 and 147 read with 144B of the Act was made in accordance with legal principles, including the requirement of a reasonable nexus between the estimate and the material on record.
• Whether the assessee was given a fair opportunity to explain the nature and source of the deposits and whether the failure to produce evidence justified the additions made.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Treatment of Cash Deposits During Demonetization Period under Section 69A

Relevant Legal Framework and Precedents: Section 69A of the Income Tax Act allows the AO to treat unexplained cash credits or deposits as income of the assessee if the assessee fails to satisfactorily explain the nature and source of such deposits. The Supreme Court in Sumati Dayal Vs. CIT (214 ITR 801) held that while the standard of proof beyond reasonable doubt does not apply in tax proceedings, the AO must consider surrounding circumstances and human probability. Further, in Chuhar Mal v CIT (1988) 172 ITR 250, it was held that taxing authorities are not bound by strict rules of evidence but must apply principles of evidence law judiciously.

Court's Interpretation and Reasoning: The AO observed that the assessee had deposited Rs. 21,08,500 during the demonetization period but failed to furnish any documentary evidence or explanation regarding the source of this cash. Despite opportunities to explain, the assessee remained silent or provided unsatisfactory explanations. The AO, therefore, treated the amount as unexplained cash under section 69A and added it to income, applying the provisions of section 115BBE for tax calculation.

The CIT(A) upheld this finding, emphasizing the failure of the assessee to produce evidence and the settled legal principle that the burden of proof lies on the assessee to explain cash deposits. The CIT(A) relied on the Supreme Court rulings to affirm that the AO's approach was justified and not arbitrary.

Key Evidence and Findings: The key evidence was the bank statement showing cash deposits during the demonetization period and the absence of any documentary proof or credible explanation from the assessee regarding the source of such deposits.

Application of Law to Facts: Applying section 69A, the AO and CIT(A) found that unexplained cash deposits must be added to income. The failure of the assessee to explain the source led to the addition. The Tribunal agreed with the legal position but modified the treatment of these deposits as explained below.

Treatment of Competing Arguments: The assessee argued that the deposits were legitimate business receipts or brought forward cash balances and that the entire period's deposits should be treated uniformly. The AO and CIT(A) rejected these contentions due to lack of evidence and non-compliance with show cause notices.

Conclusion: The AO's addition under section 69A was legally sustainable given the unexplained deposits. However, the Tribunal found fault in treating only the demonetization period deposits as unexplained while treating other deposits as business receipts.

Issue 2: Estimation of Income @ 8% under Section 44AD

Relevant Legal Framework and Precedents: Section 44AD provides a presumptive taxation scheme for small businesses, allowing income estimation at a prescribed rate (8% in this case) of turnover when books are not maintained or returns are not filed. The Supreme Court in Brij Bhusan Lal Pradhan Kumar Vs CIT (1978) 115 ITR 524 held that best judgment assessments must be honest, fair, and based on reasonable nexus with material on record.

Court's Interpretation and Reasoning: The AO estimated income at 8% of the turnover (bank deposits excluding demonetization period cash deposits) under section 44AD due to non-filing of returns and lack of books of account. The CIT(A) upheld this approach. The Tribunal agreed that estimation was justified but held that the entire deposits, including those during demonetization, should be treated as turnover for applying the presumptive profit rate.

Key Evidence and Findings: The bank statements showing total deposits of Rs. 66,53,561/- for AY 2017-18 and Rs. 1,52,26,490/- for AY 2018-19, and the assessee's failure to file returns or maintain books for AY 2017-18.

Application of Law to Facts: Since the assessee did not file returns for AY 2017-18, the AO was empowered to estimate income under section 44AD. The Tribunal held that the entire deposits should be considered turnover, and 8% profit applied uniformly, resulting in a higher income estimate than that adopted by the AO.

Treatment of Competing Arguments: The assessee contended that the AO's selective treatment of deposits was unjust and that the profit rate used for AY 2018-19 (5%) should be considered. The Tribunal rejected the latter, noting that the AO applied 8% consistently in AY 2018-19 and upheld that rate.

Conclusion: The Tribunal partly allowed the appeal for AY 2017-18 by directing the AO to treat the entire deposits as turnover and apply 8% net profit rate, increasing the assessed income from Rs. 3,63,604/- to Rs. 5,32,285/-. For AY 2018-19, the Tribunal upheld the AO and CIT(A) orders estimating income at 8%.

Issue 3: Justification of Best Judgment Assessment under Sections 144 and 147 read with 144B

Relevant Legal Framework and Precedents: Sections 144 and 147 empower the AO to make best judgment assessments where the assessee fails to comply with statutory requirements, such as filing returns or responding to notices. The assessment must be based on available material and not be arbitrary or capricious.

Court's Interpretation and Reasoning: The AO initiated assessments under these provisions due to non-filing of returns and non-compliance with notices. The CIT(A) and Tribunal found the AO's action justified as the assessee failed to furnish explanations or evidence. However, the Tribunal emphasized the AO must ensure reasonable nexus and fairness, which was lacking in the selective treatment of deposits during demonetization.

Key Evidence and Findings: Non-filing of returns, non-compliance with show cause notices, and absence of documentary evidence from the assessee.

Application of Law to Facts: The AO's best judgment assessment was warranted but required to be fair and consistent. The Tribunal's modification for AY 2017-18 reflects this balance.

Treatment of Competing Arguments: The assessee argued arbitrariness and lack of opportunity, which the Tribunal rejected, noting sufficient opportunity was provided and the assessee failed to respond.

Conclusion: Best judgment assessment was valid but required correction in treatment of deposits.

Issue 4: Adequacy of Opportunity and Burden of Proof

Relevant Legal Framework and Precedents: The principle that the assessee must be given a fair opportunity to explain and produce evidence is fundamental. The burden to explain unexplained deposits lies on the assessee as per settled jurisprudence.

Court's Interpretation and Reasoning: The AO issued show cause notices and conducted proceedings, but the assessee failed to furnish satisfactory explanations or evidence. The CIT(A) noted this failure and upheld the additions.

Key Evidence and Findings: Records of notices issued and absence of response or documentary proof from the assessee.

Application of Law to Facts: The Tribunal found that adequate opportunity was given and the burden of proof was not discharged by the assessee.

Treatment of Competing Arguments: The assessee's contention of lack of enquiry with the bank and non-consideration of cash balance as on 1.4.2016 was not supported by evidence and was rejected.

Conclusion: The additions were justified due to failure of the assessee to meet the burden of proof despite adequate opportunity.

3. SIGNIFICANT HOLDINGS

The Tribunal made the following crucial determinations:

"It is a well settled principle of law as declared by the Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT, (214 ITR 801) (SC) that the true nature of transaction have to be ascertained in the light of surrounding circumstances. It needs to be emphasized that a standard of proof beyond reasonable doubt has no applicability in the determination of matters under taxing statutes."

"The appellant has not been able to substantiate the sources of cash deposit with documentary evidence. Accordingly, I do not agree with the contentions of the appellant and hold that Ld. AO has correctly treated the cash and other deposits in the bank account as income from undisclosed sources u/s 69A of the Act."

"Since the facts are identical, the assessment order was passed u/s 144 of the Act, the Ld. AO was justified in estimating the profit as no return of income was filed. However, there was no justification for not treating the part of the deposits in the bank account during the demonetisation period only as non-businesses receipts and adding the same under section 69A of the Act while for the rest of the period during the year, the same have been treated as business receipts."

"Therefore, for the AY 2017-18, the entire deposits in the bank account are treated as the total turnover being Rs. 66,53,561/- on which the net profit rate of 8% u/s 44AD of the Act shall be applied which works out to Rs. 5,32,285/- and the same shall be assessed by the Ld. AO as the income of the assessee for A.Y. 2017-18 as against Rs. 66,53,561/- assessed by the Ld. AO and the assessee will get consequential relief."

"For AY 2018-19, the decision of Ld. CIT(A) is upheld and no relief is allowable to the assessee."

Core principles established include the applicability of section 69A for unexplained cash deposits, the validity of best judgment assessments in absence of returns, the requirement of reasonable nexus between estimation and material, and the burden of proof on the assessee to explain cash deposits. The Tribunal also emphasized consistency in treatment of deposits and fairness in assessment proceedings.

Specifically, the Tribunal examined the following core legal questions:

• Whether the approval under section 153D must be granted separately for each assessment year and each assessee, or if a consolidated approval covering multiple years and assessees is permissible.
• Whether the approval granted under section 153D was given after due application of mind, including consideration of assessment records, seized material, and replies filed by the assessee.
• Whether a mechanical or ritualistic approval under section 153D, lacking any objective reasoning or examination of material, renders the subsequent assessment proceedings under section 153A void ab initio.
• The legal consequences of an invalid approval under section 153D on the validity of assessment orders passed pursuant to such approval.

Regarding the first issue, the Tribunal relied on the plain language of section 153D and binding judicial precedents, particularly the recent decision of the Delhi High Court in PCIT vs. Shiv Kumar Nayyar. The Court emphasized that the statutory provision mandates that approval must be granted for "each assessment year" separately. The Allahabad High Court decision in PCIT v. Sapna Gupta was also cited to reinforce that the phrase "each assessment year" cannot be ignored or treated as a mere formality. The Tribunal held that a single consolidated approval letter covering multiple assessment years and multiple assessees does not meet the statutory requirement.

On the second issue, the Tribunal scrutinized the facts surrounding the approval granted on 08.12.2018 by the Additional Commissioner of Income Tax. The approval letter was a single communication granting approval for multiple assessment years from AY 2013-14 to AY 2016-17 in respect of several assessees, issued the day after the requisition was received. The letter merely stated that approval was accorded with a direction to ensure orders were passed before limitation, without any reference to examination of assessment records, seized material, or any objective reasoning. The Tribunal found that the approval was granted in a mechanical manner without any application of mind, which is a statutory requirement. The Tribunal further noted the practical impossibility of the Additional Commissioner having perused and appraised all relevant records for multiple assessees and years within such a short timeframe.

The Tribunal also considered the affidavits filed by the Revenue from the Assessing Officer and Range Head, which asserted that mind was applied. However, the Tribunal held that these affidavits could not substitute for the absence of any objective indication in the approval letter itself and the circumstances under which it was granted. The approval must reflect a quasi-judicial exercise of power, and a mere formality or rubber-stamping would defeat the legislative intent behind section 153D.

In applying the law to the facts, the Tribunal concluded that the approval under section 153D was invalid because it was granted mechanically, without application of mind, and in a manner inconsistent with the statutory mandate that approval be given separately for each assessment year and each assessee. The Tribunal relied heavily on the precedent set by the Delhi High Court in PCIT vs. Shiv Kumar Nayyar, which held that approval granted mechanically for multiple cases on the same day was invalid and that the approving authority must apply mind to each case individually.

The Tribunal also addressed competing arguments raised by the Revenue, who contended that the affidavits demonstrated due application of mind. The Tribunal rejected this contention on the ground that statutory approval must be evidenced by the approval document itself and the process followed, not merely by after-the-fact affidavits. The Tribunal emphasized that the statutory obligation is mandatory and requires a judicious exercise of power, which was absent in the present case.

Consequently, the Tribunal held that the assessment orders passed under section 153A read with section 143(3) of the Act, in consequence of such invalid approval, were void ab initio and liable to be quashed. The Tribunal allowed the ground raised by the assessee challenging the validity of the approval and quashed the assessment for AY 2013-14. The Tribunal further extended this reasoning to the other 11 appeals involving similar facts and legal grounds, allowing them on the same basis. The Revenue's appeal was dismissed as infructuous in light of the decisions in favor of the assessee.

Significant holdings of the Tribunal include the following verbatim excerpt from the judgment, encapsulating the core principle:

"Whenever any statutory obligation is cast upon any authority, such authority is legally required to discharge the obligation by application of mind. The approval of Additional CIT should reflect application of mind, which is absent in this case. The requirement of approval cannot be treated as mere formality and the mandate of the Act is that the Approving Authority has to act in a judicious manner by due application of mind in a manner of a quasi judicial authority. It is settled law that if the approval has been granted by the approving authority in a mechanical manner, the very purpose of obtaining approval u/s. 153D of the Act and the mandate of the enactment by the legislature will be defeated."

Another key principle established is that approval under section 153D must be granted separately for each assessment year and each assessee, as underscored by the Tribunal's reliance on the Delhi High Court's decision:

"A plain reading of the provision of section 153D evinces an uncontrived position of law that the approval under section 153D has to be granted for each assessment year referred to in clause (b) of sub-section (1) of section 153A... The authority granting approval has to apply its mind for 'each assessment year' for 'each assessee' separately."

In conclusion, the Tribunal's final determinations on the issues were:

• The approval under section 153D granted in a consolidated manner for multiple assessment years and assessees is invalid.
• The approval must be preceded by an application of mind, including consideration of assessment records and seized material, and cannot be mechanical or a mere formality.
• Assessment orders passed pursuant to such invalid approval under section 153D are void ab initio and liable to be quashed.
• Affidavits filed post hoc by Revenue officials cannot substitute for the absence of objective evidence of application of mind in the approval letter itself.

Accordingly, the Tribunal quashed the assessments for the relevant years and allowed the appeals of the assessees, while dismissing the Revenue's appeal as infructuous.

1. Whether the denial of exemption of Rs. 26,35,000/- under section 11 solely due to delay in filing Form 10B is legally sustainable.

2. Whether the Learned Addl/JCIT (Appeals), functioning under the Faceless Appeal Scheme, had jurisdiction to pass an order under section 250 of the Income Tax Act.

3. Whether the addition of Rs. 26,35,000/- to the total income of the trust and consequent tax demand is arbitrary and unjust.

4. Whether the assessee is liable to pay interest amounting to Rs. 1,06,921/-.

Issue 1: Denial of exemption under section 11 due to delay in filing Form 10B

The legal framework pertinent to this issue involves section 11 of the Income Tax Act, which grants exemption to charitable trusts on income applied for charitable purposes, subject to compliance with prescribed conditions, including filing of audit reports in Form 10B as mandated by Rule 12A(1)(b). The question is whether the delay in filing Form 10B is mandatory and fatal to the claim of exemption.

The Court examined precedents including decisions of the ITAT and various High Courts. The assessee relied on ITAT decisions which held that the conditions relating to filing Form 10B are directory and not mandatory, and a mere delay should not bar the exemption. The Court noted that the assessee filed the tax audit report with a delay of one day beyond the extended due date, and the Form 10B was filed before the return of income.

The Court distinguished the facts from the Supreme Court decision in CIT v. Wipro Ltd., which involved a strict interpretation of a different provision (Section 10B) and was not applicable to the facts of this case. The Court further relied on the Gujarat High Court's decision in CIT v. Laxmanarayan Dev Shrishan Seva Khendra, which emphasized an equitable and balanced approach in cases of delay in filing Form 10B for exemption under section 11.

Further, the Court referred to the Madras High Court decision in Shri Chandraprabhuji Maharaj Jain Juna Mandir Trust, which held that procedural lapses should not defeat substantive statutory benefits, especially when the audit report and necessary forms were eventually filed and the assessment was not completed under section 143(3). Similarly, the Gujarat High Court in CIT v. Xavier Kelavani Mandal held that furnishing the audit report is a procedural provision and substantial compliance suffices.

The Court observed that the CBDT had previously relaxed the conditions for filing Form 10B in earlier assessment years, indicating the directory nature of the requirement. The Court found no dispute that the audit report was obtained prior to filing the return and that the delay was minimal and technical in nature.

On these grounds, the Court held that the denial of exemption solely on account of delay in filing Form 10B was not justified. The Court directed the Assessing Officer to allow the exemption claim under sections 11 and 12 of the Act.

Issue 2: Jurisdiction of the appellate authority under the Faceless Appeal Scheme

The assessee contended that the Learned Addl/JCIT (Appeals) had no jurisdiction to pass the order under section 250 of the Act pursuant to the Faceless Appeal Scheme. However, the judgment does not record any substantive argument or contrary view from the Revenue on this point.

The Court did not specifically elaborate on this issue in its reasoning, implying acceptance of the appellate authority's jurisdiction or that the issue was not pressed with sufficient force. Consequently, no adverse finding was made against the appellate authority's jurisdiction.

Issue 3: Validity of the addition of Rs. 26,35,000/- and consequent tax demand

This issue is intrinsically linked to the first issue concerning the denial of exemption. Since the Court held that the delay in filing Form 10B was not a valid ground to deny exemption, the addition of the said amount to the total income was consequently unjustified.

The Court found the addition arbitrary and unjust, as it was based solely on a procedural delay which had been condoned in light of the legal precedents and facts. The Court thus set aside the addition and directed that the exemption be allowed.

Issue 4: Liability to pay interest on the tax demand

The assessee denied liability to pay interest amounting to Rs. 1,06,921/-. The Court did not directly address this issue in detail, but since the tax demand itself was set aside by allowing the exemption, the question of interest on a non-existent demand became moot.

Significant holdings and core principles established:

"The conditions of filing the Form 10B was relaxed by the CBDT in the earlier assessment years, therefore, it clearly shows that it is only directory in nature and not mandatory, since, it is in compliance with Rules framed for availing the benefit under the provisions of Section 11 and it is held that to be directory in nature."

"When the assessee was entitled to a statutory benefit, it would be incumbent upon the concerned authority to examine the admissibility of the benefit than to foreclose the assessee on technicalities."

"The provision regarding furnishing of audit report along with the return has to be treated as a procedural provision, It is directory in nature and its substantial compliance would suffice."

"The benefit of exemption should not be denied merely on account of delay in furnishing the same, and it is permissible for the assessee to produce the audit report at a later stage either before the Income Tax Officer or before the appellate authority by showing a sufficient cause."

Based on these principles, the Court concluded that the assessee's exemption claim under section 11 cannot be denied solely due to a one-day delay in filing Form 10B, especially when the form was filed before the return and the delay was technical and minimal.

The Court directed the Assessing Officer to allow the exemption claim and set aside the addition and tax demand raised on that basis. The appeal was allowed accordingly.

(i) Whether the initiation of reassessment proceedings under section 147 of the Income Tax Act, 1961 was justified, particularly in light of the fact that the assessee had filed a return of income for the relevant assessment year;

(ii) Whether the additions made by the Assessing Officer (AO) under section 144 read with section 147, on account of alleged undisclosed investments in immovable property and bank deposits, were justified;

(iii) Whether the provisions of section 56(2)(viib) of the Income Tax Act were applicable to the facts of the case, specifically regarding the addition of the difference between stamp duty value and consideration paid for the immovable property;

(iv) Whether the principles of natural justice were violated in the assessment and appellate proceedings, considering the non-service of notices and the personal circumstances of the assessee;

(v) Whether the delay in filing the appeal before the Tribunal was sufficiently explained and liable to be condoned.

Issue-wise Detailed Analysis:

1. Justification for Initiation of Reassessment Proceedings under Section 147

The relevant legal framework mandates that reassessment proceedings under section 147 can be initiated only if the AO has a "reason to believe" that income has escaped assessment. The AO's order erroneously stated that no return was filed by the assessee for the AY 2011-12, which was factually incorrect as the assessee had filed her return on 11.07.2011 declaring income of Rs. 1,08,000/-. This was supported by documentary evidence including the return acknowledgment.

The Court noted that the AO's assumption was based solely on third-party information regarding purchase of property and bank deposits without proper enquiry or verification of the filed return. The AO treated the stamp duty valuation of the property as undisclosed income without substantiating the source of funds or verifying the payment details. This approach was found to be conjectural and not grounded in evidence.

The Tribunal emphasized that the AO's failure to verify the existence of a filed return and the source of funds undermined the validity of the reassessment proceedings initiated under section 147.

2. Legitimacy of Additions Made under Section 144 read with Section 147

The AO made additions of Rs. 51,62,311/- on account of alleged undisclosed investments in property and bank deposits. The AO relied on the difference between the stamp duty value (Rs. 35,27,088/-) and the agreement value (Rs. 16,83,000/-) of the property, and also treated the time deposits of Rs. 16,35,223/- as unexplained income.

The assessee's representative produced detailed documentary evidence showing that the property was purchased in AY 2009-10, with payment made through bank cheques from the Saraswat Co-operative Bank, supported by bank statements and provisional registration documents. Furthermore, the payment was funded by maturity proceeds of fixed deposits amounting to Rs. 23,38,000/- credited to the bank account prior to the purchase.

The Tribunal found that the payments were duly accounted for and supported by credible evidence, negating the AO's assumption of undisclosed income. The AO's failure to verify these documents and reliance on ITD system data alone was criticized as insufficient for making additions.

3. Applicability of Section 56(2)(viib) Regarding Addition of Difference Between Stamp Duty Value and Consideration

Section 56(2)(viib) of the Income Tax Act pertains to receipt of immovable property without consideration or for inadequate consideration, with additions being made for the difference exceeding Rs. 50,000/- between stamp duty value and actual consideration. However, this provision was introduced by the Finance Act, 2013, effective from 01.04.2014, applicable from AY 2014-15 onwards.

The AO and the Department contended that the amendment was clarificatory and should apply retrospectively. The Tribunal examined the Memorandum explaining the Finance Act, 2013, which explicitly stated that the amendment was not clarificatory but a new provision to cover inadequate consideration cases.

Given that the assessment year under consideration was 2011-12, prior to the amendment's effective date, the Tribunal held that section 56(2)(viib) was not applicable. Moreover, the property was not acquired without consideration; the consideration was duly paid and documented.

4. Violation of Principles of Natural Justice

The assessee, an elderly and uneducated individual, was dependent on her late husband for managing financial and legal matters. Several notices were not served to the assessee, and the show cause notice was received only shortly before the ex-parte assessment order was passed. The husband, who was the registered user of the email ID for departmental communication, passed away during the appellate proceedings, resulting in the assessee being unaware of further communications, including the dismissal of her appeal by the CIT(A) for non-appearance.

The Tribunal acknowledged these circumstances as sufficient cause for the assessee's inability to participate effectively in the proceedings and held that the principles of natural justice were not observed. It directed that the assessee be afforded a reasonable opportunity to present her case afresh before the AO.

5. Delay in Filing Appeal Before the Tribunal

The appeal before the Tribunal was filed with a delay of approximately 555 days. The assessee submitted an affidavit explaining the delay, attributing it to the death of her husband and lack of awareness of the appellate order. The Department did not oppose the condonation of delay.

The Tribunal, satisfied with the explanation, condoned the delay and admitted the appeal for adjudication.

Significant Holdings:

The Tribunal held:

"The Ld. AO's assumption that the cash deposits were unexplained is merely conjectural and not supported by facts."

"The provisions of Section 56(2)(viib) of the Act have no retrospective applicability to AY 2011-12."

"The assessee has adequately explained the source of investment through documentary evidence, namely the maturity proceeds of fixed deposits credited to the bank account."

"The principles of natural justice were not complied with as the assessee was not given a fair opportunity to present her case, especially considering her personal circumstances."

"The matter is restored to the file of the AO for fresh examination with a direction to provide the assessee a fair opportunity of hearing."

Core principles established include the requirement that reassessment proceedings under section 147 must be based on a genuine reason to believe supported by facts, the non-retrospective nature of amendments to section 56(2)(viib), and the imperative of adherence to natural justice, especially when the assessee is incapacitated or unable to defend due to extraordinary circumstances.

Ultimately, the Tribunal allowed the appeal for statistical purposes, setting aside the ex-parte assessment order and the appellate order, and remanding the matter for fresh adjudication in a fair and just manner.

1. Whether the Commissioner of Income-Tax (Appeals) ("CIT(A)") was justified in setting aside the assessment order passed by the Assessing Officer ("A.O.") under Section 143(3) read with Section 144C(3) of the Income Tax Act, 1961 ("the Act") for making a fresh assessment.

2. Whether the CIT(A) had jurisdiction to set aside the assessment order and refer the matter back to the A.O. under the powers granted by the proviso to Section 251(1)(a) of the Act, as amended by the Finance (No.2) Act, 2024, when the assessment was not made under Section 144 but under Section 143(3) read with 144C(3).

Issue-wise Detailed Analysis

Issue 1: Legality and propriety of the CIT(A)'s order setting aside the assessment and directing a fresh assessment

Relevant legal framework and precedents: The assessment was framed by the A.O. under Section 143(3) read with Section 144C(3) of the Act. Section 143(3) empowers the A.O. to make a regular assessment after scrutiny, while Section 144C(3) relates to assessment orders passed following dispute resolution proceedings under the Dispute Resolution Panel scheme. The CIT(A) invoked the powers under Section 251(1)(a), as amended by the Finance (No.2) Act, 2024, which permits the CIT(A) to set aside an assessment and refer the case back to the A.O. for fresh assessment where the appeal is against an order made under Section 144 of the Act.

Court's interpretation and reasoning: The CIT(A) noted that the assessment order was passed ex parte due to the assessee's failure to furnish requisite information regarding cost of acquisition and other relevant documents related to the sale of immovable properties. The CIT(A) relied on the post-amendment proviso to Section 251(1)(a), effective from 1-10-2024, to set aside the order and remit the matter for fresh assessment with a direction to provide the assessee an opportunity of being heard.

Key evidence and findings: The A.O. had recharacterized the declared Long Term Capital Gains (LTCG) as Short Term Capital Gains (STCG) amounting to Rs. 2,15,25,000/- due to non-furnishing of documents by the assessee. The CIT(A) observed the assessment was ex parte and thus set aside the assessment order for fresh adjudication.

Application of law to facts: The CIT(A) applied the newly inserted proviso to Section 251(1)(a) to justify setting aside the assessment and remitting the matter to the A.O. However, the proviso explicitly limits this power to assessments made under Section 144 only.

Treatment of competing arguments: The Revenue contended that the CIT(A) had no jurisdiction to set aside the assessment as it was framed under Section 143(3) read with 144C(3), not under Section 144. The assessee supported the CIT(A)'s order relying on the amended Section 251(1)(a).

Conclusion: While the CIT(A) was correct in emphasizing the need for a fair opportunity to the assessee, the power to set aside and remit the assessment is statutorily confined to orders passed under Section 144 alone and does not extend to assessments under Section 143(3) read with 144C(3).

Issue 2: Jurisdictional scope of the proviso to Section 251(1)(a) of the Act post-amendment

Relevant legal framework and precedents: Section 251(1)(a) of the Act empowers the CIT(A) to confirm, reduce, enhance, or annul an assessment in appeal. The proviso, inserted by the Finance (No.2) Act, 2024, w.e.f. 01-10-2024, grants an additional power to set aside an assessment and remit it to the A.O. for fresh assessment, but only where the appeal is against an order made under Section 144.

Court's interpretation and reasoning: The Tribunal carefully examined the statutory language and noted that the proviso's jurisdictional scope is expressly limited to assessments under Section 144. Since the assessment in the present case was framed under Section 143(3) read with 144C(3), the CIT(A) lacked the statutory authority to set aside the assessment order and remit it.

Key evidence and findings: The assessment order clearly stated Section 143(3) r.w.s 144C(3) as the basis for assessment. The CIT(A) had relied on the proviso to Section 251(1)(a) without considering this limitation.

Application of law to facts: The Tribunal applied the principle of strict construction of statutory provisions conferring jurisdictional powers and held that the CIT(A)'s power to set aside and remit is not available in cases where the assessment is not under Section 144.

Treatment of competing arguments: The Revenue's argument that the CIT(A) exceeded jurisdiction was accepted, while the assessee's reliance on the amended proviso was rejected as misplaced.

Conclusion: The CIT(A) exceeded jurisdiction by setting aside the assessment framed under Section 143(3) r.w.s 144C(3) relying on the proviso to Section 251(1)(a), which is confined to Section 144 assessments only.

Issue 3: Procedural fairness and opportunity of hearing

Relevant legal framework and precedents: Principles of natural justice require that an assessee be given a reasonable opportunity of being heard before adverse orders are passed. The CIT(A) emphasized this in setting aside the ex parte assessment order.

Court's interpretation and reasoning: While the Tribunal upheld the importance of procedural fairness, it clarified that the remedy lies in the appellate process and not in the CIT(A)'s power to set aside the assessment under Section 251(1)(a) where jurisdiction is absent.

Key evidence and findings: The A.O. passed the assessment order ex parte due to non-furnishing of documents by the assessee.

Application of law to facts: The Tribunal directed the CIT(A), upon remand, to afford a reasonable opportunity of hearing to the assessee in adjudicating the appeal.

Treatment of competing arguments: The assessee's plea for fresh assessment with opportunity of hearing was acknowledged but the procedural remedy was to be exercised within the appellate jurisdiction and not by setting aside the assessment order without jurisdiction.

Conclusion: Procedural fairness must be ensured during appeal proceedings, but the CIT(A) must act within the scope of jurisdiction granted by law.

Significant Holdings

"Although the 'Proviso' to Section 251(1)(a) vests jurisdiction with the CIT(A) to set aside the assessment and refer the case back to the A.O. for making a fresh assessment, but the power to exercise such power is limited only to a case where the order of the assessment is made under Section 144 of the Act."

"As the Legislature has not extended the aforesaid jurisdiction to set aside the assessment in a case where the same had been framed by the A.O. under Section 143(3) of the Act, therefore, we find substance in the claim of the revenue that the CIT(A) had exceeded the jurisdiction vested with him as per the 'Proviso' to Section 251(1)(a) of the Act and wrongly set aside the assessment."

"We thus, in terms of our aforesaid observations, find substance in the Ld. DR's claim that as the CIT(A) had traversed beyond the scope of his jurisdiction and set aside the matter to the file of A.O. in the garb of the powers vested with him as per the post-amended Section 251(1) of the Act, therefore, the same cannot be sustained."

Core principles established include:

• The power of the CIT(A) to set aside and remit an assessment for fresh adjudication under the proviso to Section 251(1)(a) is strictly confined to assessments made under Section 144.
• Assessments framed under Section 143(3) read with 144C(3) do not fall within the ambit of this proviso, and therefore, the CIT(A) cannot set aside such assessments on that ground.
• Procedural fairness and opportunity of hearing remain essential but must be enforced within the jurisdictional limits of the appellate authority.
• Where the CIT(A) exceeds jurisdiction, the appellate order is liable to be set aside and the matter remanded for proper adjudication within lawful powers.

Final determination on the issues:

• The CIT(A) erred in setting aside the assessment order passed under Section 143(3) r.w.s 144C(3) relying on the proviso to Section 251(1)(a) which applies only to Section 144 assessments.
• The CIT(A)'s order setting aside the assessment is quashed and set aside.
• The matter is restored to the file of the CIT(A) with a direction to re-adjudicate the appeal in accordance with law and after affording the assessee a reasonable opportunity of being heard.

1. Whether the assessee company violated the provisions of section 269SS of the Income Tax Act by accepting a specified sum exceeding Rs. 20,000/- in cash from customers in relation to the transfer of immovable property.

2. Whether the penalty under section 271D of the Act is leviable on the assessee for the alleged violation of section 269SS.

3. Whether the additional amounts received by the assessee for providing extra amenities to customers form part of the "consideration for transfer of immovable property" as defined under section 194-IA of the Act, thereby attracting the provisions of section 269SS.

4. The applicability and interpretation of the deeming provisions under section 269SS and the extent to which the penalty under section 271D can be imposed.

5. The evidentiary value and relevance of the seized diary and statements recorded during search proceedings under section 132 of the Act in establishing the violation of section 269SS.

Issue-wise detailed analysis:

Issue 1: Violation of Section 269SS by accepting cash payments exceeding Rs. 20,000/- in relation to transfer of immovable property

The legal framework under section 269SS prohibits acceptance of any loan, deposit, or specified sum exceeding Rs. 20,000/- otherwise than by an account payee cheque, bank draft, or electronic clearing system. The term "specified sum" includes any sum of money receivable, whether as advance or otherwise, in relation to transfer of an immovable property, whether or not the transfer takes place.

The assessing officer (AO) initiated penalty proceedings under section 271D on the ground that the assessee accepted Rs. 1,37,73,000/- in cash from customers, which was in violation of section 269SS. The AO relied heavily on a seized diary found during search operations under section 132, which contained entries of amounts received from customers. The AO contended that these amounts were incidental charges connected to the sale of immovable property and hence covered under section 269SS.

The assessee contended that the amounts received were not part of the sale consideration for the row houses but were for additional amenities or modifications requested by certain customers post-agreement. These were optional, customer-specific, and independent of the main sale agreement. The amounts were reimbursed for extra work done by contractors on behalf of customers and not linked to the transfer of immovable property itself.

The appellate authority (CIT(A)) examined the seized diary and found inconsistencies, including entries with future dates beyond the search date, and noted that the diary was maintained by a site supervisor, not management. The CIT(A) held that the AO failed to produce corroborative evidence proving that the amounts mentioned in the diary were actually received during the relevant year. Further, the statement of the director, recorded under pressure during search, was considered a settlement offer to avoid litigation rather than an admission of violation.

The Tribunal analyzed the sale agreements and sale deeds for the row houses, noting that the agreed sale consideration was received through banking channels and registered accordingly. The additional amounts for amenities were found to be separate from the sale consideration and were not incidental charges contemplated under section 269SS. The Tribunal concluded that no specified sum was received in cash in contravention of section 269SS.

Issue 2: Levy of penalty under section 271D for violation of section 269SS

Section 271D prescribes a penalty equal to the amount of loan, deposit, or specified sum accepted in contravention of section 269SS. The AO imposed a penalty of Rs. 1,37,73,000/- on the assessee.

The CIT(A) deleted the penalty, holding that the AO failed to establish violation of section 269SS with reliable evidence. The Tribunal upheld this view, emphasizing that penalty proceedings are distinct from assessment proceedings and require strict proof of violation. The Tribunal also noted that the assessee had complied with all notices and that the accounts were audited and accepted by the AO without rejection of books or invocation of section 144. The Tribunal found that the assessee had reasonable cause for accepting the amounts in cash, as these were reimbursements for additional amenities requested by customers and not part of the sale consideration.

Issue 3: Applicability of section 194-IA definition of "consideration for transfer of immovable property"

Section 194-IA requires deduction of tax at source on consideration for transfer of immovable property and defines "consideration" to include charges such as club membership fees, car parking fees, electricity or water facility fees, maintenance fees, and other incidental charges.

The AO relied on this definition to argue that the additional amounts received by the assessee were incidental to the sale and thus covered under section 269SS.

The Tribunal distinguished the facts, observing that the additional amenities in question were not akin to the incidental charges enumerated in section 194-IA but were customer-specific interior modifications and finishing work. These were optional and not part of the original sale agreement. The Tribunal further noted that the amendment to section 194-IA cited by the AO came into effect only from 01.09.2019, after the relevant financial year.

Therefore, the Tribunal held that the definition under section 194-IA was not applicable to the facts of the case and could not be used to extend the scope of section 269SS to the additional amenities charged.

Issue 4: Interpretation of the deeming provisions under section 269SS and the principle of strict construction

The assessee argued that section 269SS is a deeming provision attracting penal consequences and must be strictly construed. In case of any ambiguity, the benefit of doubt should be given to the assessee.

The Tribunal agreed with this principle and emphasized that the AO failed to prove the violation beyond doubt. The seized diary was inconsistent, and the statement recorded under duress was not sufficient to establish contravention. The Tribunal reiterated that the penalty under section 271D is discretionary and should not be imposed without clear evidence of violation.

Issue 5: Evidentiary value of the seized diary and statements recorded under section 132

The AO relied on the seized diary entries and the director's statement under section 132(4) to establish that the assessee received cash amounts in violation of section 269SS.

The CIT(A) and the Tribunal found that the diary was maintained by a site supervisor, not management, contained future dates beyond the search date, and did not conclusively prove receipt of cash in the relevant year. The director's statement was recorded after a prolonged search, when the director was suffering from a serious illness, and was made to avoid litigation rather than as an admission of guilt.

The Tribunal held that the AO failed to corroborate the diary entries with any material evidence and that the statement alone could not justify penalty imposition. The Tribunal also noted that the assessee had fully disclosed the amounts as income and paid tax thereon, and the accounts were audited and accepted by the AO.

Significant holdings:

"From the above analysis it is crystal clear that 269SS of the I.T. Act is not a deeming provision and it is relevant to mention here that amount received more than 20,000/- cash mode in relation to transfer of immovable property whether or not transfer taken place the same is covered under Specified Sum as mentioned in Section 269SS."

"The notings in the diary themselves suggest that the declaration was not based on any actual payments made, because the diary itself is inconsistent with the statement given by the director."

"Since the facts placed before us clearly demonstrate that the alleged sum of Rs. 1,37,73,000/- is received over and above the agreed sale consideration of row house for additional work relating to interior and other finishing work as per the choice of the customer and the total consideration for transfer of the immovable property in the form of row houses has been received through banking channel, there is no violation of sec. 269SS of the Act and, therefore, assessee cannot be visited by the penalty u/s. 271D of the Act."

"The definition of consideration for transfer of immovable property referred in sec. 194-IA of the Act cannot be applied in the given set of facts and circumstances."

"The AO has not been able to prove the violation of the provisions of section 269SS of the Act with corroborative evidence. Therefore, the penalty levied u/s 271D of Rs. 1,37,73,000/- is hereby deleted."

The Tribunal conclusively held that the assessee did not violate section 269SS as the amounts received in cash were for additional amenities independent of the sale consideration and that the entire sale consideration was received through banking channels and duly registered. Consequently, the penalty under section 271D was rightly deleted by the CIT(A). The AO's reliance on section 194-IA was misplaced as the additional charges did not fall within the definition of "consideration" under that section. The seized diary and statements recorded under duress lacked evidentiary value to establish contravention.

• Whether the petitioner, who is not a party to the original proceedings before the Commissioner of Customs, has locus standi to file an appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT).
• Whether the initiation of investigation based on the petitioner's complaint confers upon the petitioner the status of an aggrieved person entitled to challenge the order passed by the Commissioner of Customs.
• The appropriate legal remedy available to the petitioner if aggrieved by the order absolving the respondent from allegations of forgery.
• Whether the petitioner was entitled to an opportunity of hearing before the Appellate Tribunal and if denial of such opportunity would vitiate the order.
• Whether the petitioner specified the relevant provisions of the Customs Act under which the complaint against the respondent was lodged, and the implications thereof.

Issue-wise Detailed Analysis

1. Locus Standi of the Petitioner to File Appeal before CESTAT

The legal framework governing appeals before the Customs Excise and Service Tax Appellate Tribunal is that only an aggrieved person or party to the original proceedings can file an appeal. The Court referred to the principle that a person who is not adversely affected by an order passed by the original authority cannot be considered an aggrieved party to maintain an appeal. The Appellate Tribunal's reasoning was that the petitioner was neither a party nor a co-noticee in the original proceedings, and hence lacked locus standi.

The Court noted that the petitioner did not suffer any adverse order; the Commissioner of Customs passed an order absolving the respondent with a severe warning. The petitioner's status was limited to that of a complainant who had initiated the investigation. The Court upheld the Appellate Tribunal's interpretation that mere initiation of investigation based on a complaint does not confer the complainant the status of an aggrieved person. This principle aligns with established legal precedents that locus standi arises only when a person's legal rights or interests are adversely affected by an order.

Consequently, the Court applied this legal principle to the facts and concluded that the petitioner had no locus standi to file the appeal before the Tribunal, and the Tribunal's dismissal of the appeal on this ground was justified.

2. Status of the Petitioner as an Aggrieved Person

The Court examined the nature of the petitioner's involvement and the effect of the order passed by the Commissioner of Customs. The petitioner was related to the persons managing the respondent's affairs and had a personal rivalry with them. The complaint lodged by the petitioner alleged forgery of shipping bills by the respondent, but did not specify the provisions of the Customs Act under which the complaint was made.

The Court emphasized that the Customs Act is intended to prevent violations of its provisions and does not provide a remedy for personal disputes or rivalries. Since the order of the Commissioner absolved the respondent with a warning, it did not adversely affect the petitioner's legal rights or interests. The Court reasoned that the petitioner's grievance was essentially personal and did not translate into a legal grievance under the Customs Act.

Therefore, the Court concurred with the Appellate Tribunal that the petitioner was not an aggrieved person entitled to challenge the order, reinforcing the principle that only persons whose legal rights are infringed can be considered aggrieved.

3. Appropriate Remedy for the Petitioner

The Court addressed the remedy available to the petitioner if dissatisfied with the order absolving the respondent. It held that since the petitioner was not a party to the Customs proceedings and the order did not adversely affect him, the appropriate course was to seek redressal through other legal channels.

The Court suggested that the petitioner could lodge a criminal complaint for alleged forgery or file a civil suit for damages for defamation or injury to reputation. This aligns with the principle that administrative remedies under the Customs Act are not available to complainants who are not parties to the proceedings and whose grievances are personal in nature.

The Court's treatment of this issue clarified the separation between administrative remedies under the Customs Act and other legal remedies available under criminal or civil law.

4. Opportunity of Hearing before the Appellate Tribunal

The petitioner contended that he was not given an opportunity to represent his case before the Appellate Tribunal. The Court considered this submission but found that even if such an opportunity were granted, the outcome would remain unchanged because the petitioner lacked locus standi.

The Court reasoned that remanding the matter to the Tribunal for hearing would serve no useful purpose and accordingly rejected the request. This reflects the principle that procedural opportunities do not override substantive jurisdictional limitations such as locus standi.

5. Non-specification of Relevant Customs Act Provisions in the Complaint

The Court noted that the petitioner failed to specify under which provisions of the Customs Act the complaint against the respondent was lodged. This omission was significant because the Customs Act prescribes specific procedures and grounds for initiating complaints and proceedings.

The Court observed that the Commissioner of Customs, after investigation, passed the order absolving the respondent with a severe warning, indicating that the complaint did not warrant further punitive action. The petitioner's failure to identify the statutory provisions undermined the validity of the complaint and the subsequent appeal.

This factor reinforced the Court's conclusion that interference with the order of the Appellate Tribunal was unwarranted.

Significant Holdings

The Court held that "merely because investigation was initiated on the basis of the petitioner's complaint, it cannot be considered that the petitioner is aggrieved by such an order and has come to the right conclusion that the petitioner has no locus standi to file the appeal."

It was established that a complainant who is not a party to the original proceedings and who has not been adversely affected by the order does not have the legal standing to challenge that order before the Appellate Tribunal.

The Court also affirmed the principle that the Customs Act is designed to prevent violations of customs laws and does not provide a forum for personal disputes or rivalries to be litigated under its provisions.

Finally, the Court concluded that "if the petitioner is aggrieved by the conduct of the second respondent and its partners/representatives, he has to redress his grievance either by lodging a criminal complaint or through the Civil Court against them," thereby delineating the proper legal avenues for such grievances.

Accordingly, the writ petition challenging the Appellate Tribunal's order was dismissed, with liberty granted to the petitioner to pursue alternative remedies.

Issue 1: Validity and Sufficiency of the Panchnama

The relevant legal framework requires that seizure memos or Panchnamas record the facts of the seizure and search proceedings, witnessed by independent persons (panch witnesses), and should be signed by all parties present. Precedents cited by the appellant were distinguished on facts: in Mukesh Industries, the Panchnama was held unreliable due to unfair means; Anand Kumar involved a departmental appeal against acceptance of a doubtful Panchnama; Mahalaxmi Dyeing Mills concerned discrepancies not present here; and Kuber Tobacco Products clarified that a Panchnama must record material facts visually perceived during investigation.

The Court examined the Panchnama dated 21.12.2018 in detail, noting that it contained comprehensive information about the surveillance, interception of the mini truck, identification of persons present, discovery of cigarettes, transportation of goods to the DRI office, detailed inventory annexed as Annexures A and B, and signatures of all parties including the appellant. The Panchnama was read over in vernacular and signed, and the appellant admitted its contents.

The Court rejected the appellant's arguments about missing minor details (such as exact manner of opening the godown, identification of laborers, or vehicle details for the 33 cartons) as irrelevant and impractical. It emphasized that the Panchnama is a record of facts visually perceived or experienced and need not include every minute detail.

Further, the Court relied on the principle from State of Haryana v. Raj Mal and Radha Kishan v. State of UP that illegal search does not vitiate seizure if the evidence is otherwise reliable. The Court held that even if there were minor discrepancies, they do not affect the admissibility or reliability of the Panchnama, as the test of admissibility lies in relevancy and absence of prejudice. The appellant failed to establish any prejudice caused by alleged defects.

Regarding the missing Annexure D mentioned in the seizure memo, the Court accepted the explanation of typographical error and found no prejudice to the appellant.

Issue 2: Admissibility and Voluntariness of Statements under Section 108

The appellant challenged the statements recorded under Section 108 of the Customs Act as being without corroboration and allegedly obtained under threat or coercion. The appellant's statement admitted receiving consignments of foreign origin cigarettes from a supplier, storing them in his godown, distributing them to transporters as per instructions, receiving payments through hawala operators, and being aware that the cigarettes were smuggled goods.

The Court found the statement to be voluntary, self-incriminatory, and consistent with other evidence. The appellant did not retract the statement at any time. The Court referred to settled legal principles that a voluntary confessional statement recorded by customs officers can form the sole basis for conviction. It also noted that admissions need not be further proved and can suffice the burden of proof.

The Court rejected the appellant's plea for cross-examination of witnesses who implicated him, holding that denial of such opportunity does not violate principles of natural justice when the appellant has already made a confession. The Court cited Supreme Court precedents establishing that once a confession is made, cross-examination of other witnesses is not necessary and no prejudice is caused to the accused.

The Court also relied on a recent High Court decision affirming that denial of cross-examination in smuggling cases involving confessional statements does not prejudice the accused.

Issue 3: Classification of Seized Goods as Smuggled and Legal Compliance

The seized goods were foreign origin cigarettes found in the mini truck, godown, and appellant's residence. The cigarettes did not comply with mandatory health warning requirements under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, which mandates 85% principal display area coverage with pictorial and textual warnings. They also lacked mandatory declarations under the Legal Metrology (Packaged Commodity) Rules, 2011, such as manufacturer/importer name, quantity, manufacturing date, and retail price.

The appellant failed to produce any valid import or transport documents for the seized goods. The Court noted that cigarettes are notified goods under Section 123 of the Customs Act, placing the burden on the appellant to prove lawful import. The absence of such proof and the illegal packaging and labeling led the authorities to rightly conclude the goods were smuggled and liable for confiscation under Sections 111(b), 111(d), and 111(o) of the Customs Act.

Issue 4: Valuation of Seized Goods

The appellant challenged the valuation on grounds of absence of market survey details. The revenue ascertained the market value at Rs. 14 per cigarette stick based on discrete market enquiry, as no declared value was available due to non-production of import documents. The Court held that since the e-way bill declared the goods as metal planters and the actual goods were smuggled cigarettes, the declared value was irrelevant. The valuation by the revenue was reasonable and no interference was warranted.

Issue 5: Burden and Standard of Proof

The Court reiterated that in customs adjudication proceedings involving evasion of duty, the standard of proof is preponderance of probability, not proof beyond reasonable doubt. It relied on Supreme Court decisions stating that the prosecution need only establish a degree of probability sufficient for a prudent person to believe the fact in issue. Given the evidence and admissions, the Court found the burden satisfactorily discharged by the revenue.

Conclusions and Final Determinations

The Court concluded that the Panchnama was valid, comprehensive, and reliable, and minor alleged deficiencies did not vitiate the seizure. The appellant's confessional statement under Section 108 was voluntary and admissible, forming a strong basis for the findings. The seized cigarettes were smuggled goods as per the applicable laws and regulations, and the appellant failed to prove lawful import. The valuation adopted was fair and justified. The appellant suffered no prejudice by denial of cross-examination of witnesses given his own admissions. The confiscation and penalties imposed under Sections 111(d) and 112(b)(i) of the Customs Act, 1962, were upheld. The appeal was dismissed.

Significant Holdings:

"The Panchnama as quoted above, clearly sets out the entire procedure of the search and seizure, leading to the recovery of smuggled cigarettes for which the applicant was not able to produce any legal documents."

"The appellant had agreed with the contents of the Panchama. Having admitted, it is now not open to the appellant to challenge the contents of the Panchama."

"An illegal search does not vitiate the seizure of the articles. The only requirement of law in such cases is that the court has to examine carefully the evidence regarding the seizure and beyond this no further consequences ensue."

"If the provisions of the Act have not been complied with, the Court has to consider whether as a result thereof any prejudice has been caused to the accused."

"A voluntary confessional statement recorded by customs officers can form the sole basis for conviction."

"Once an admission has been made by the petitioner, the denial of right to cross examine the witnesses is justified as no prejudice can be pleaded by such a party."

"The standard of proof in evasion of customs duty proceedings is preponderance of probability and not proof beyond reasonable doubt."

"The burden is on the appellant to establish that the seized cigarettes were not smuggled."

- Whether the detention and confiscation of the jewellery by the Customs Department without issuance of a show cause notice (SCN) and without granting a personal hearing is legally valid under the Customs Act, 1962.

- Whether a pre-printed waiver signed by the petitioner, purportedly waiving the right to SCN and personal hearing, satisfies the procedural requirements under Section 124 of the Customs Act, 1962.

- Whether the petitioner's act of not declaring the jewellery at the Green Channel constitutes a violation warranting confiscation and imposition of penalty.

- The applicability and interpretation of Section 124 of the Customs Act regarding procedural safeguards before confiscation and penalty.

- The validity of the Customs Department's practice of relying on standard pre-printed waivers to dispense with SCN and personal hearing.

- The appropriate relief and penalty in light of the above considerations.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of detention and confiscation without issuance of show cause notice and personal hearing

Relevant legal framework and precedents: Section 124 of the Customs Act, 1962 mandates that no order confiscating goods or imposing penalty shall be made unless (a) a written notice specifying grounds is issued with prior approval of an Assistant Commissioner or above, (b) an opportunity to make written representation is given, and (c) a reasonable opportunity of personal hearing is provided. The section allows for oral SCN and representation only at the request of the person concerned.

Precedents include two key decisions of this Court: Amit Kumar v. The Commissioner of Customs and Mr. Makhinder Chopra vs Commissioner of Customs. Both judgments emphasize that natural justice principles must be strictly followed, and that pre-printed waivers purporting to dispense with SCN and personal hearing are impermissible.

Court's interpretation and reasoning: The Court noted that no SCN was issued in this case; instead, the Customs Department relied on a pre-printed waiver signed by the petitioner. The Court held that such a waiver does not comply with Section 124's requirements. The waiver was neither a proper declaration nor intelligible to a layperson. The Court emphasized that natural justice cannot be reduced to mere formality and that the affected person cannot be condemned unheard.

Key evidence and findings: The petitioner signed a standard pre-printed waiver form on the date of detention, agreeing to waive SCN and personal hearing. The petitioner's authorized representative also requested release of goods without SCN or hearing. The order-in-original was passed without issuance of SCN or hearing.

Application of law to facts: The Court applied the principles from Amit Kumar and Makhinder Chopra, finding that the pre-printed waiver did not satisfy Section 124. The absence of a proper SCN and hearing rendered the confiscation order unsustainable.

Treatment of competing arguments: The Customs Department argued that the waiver sufficed as an oral SCN and that the petitioner had admitted omission and commission. The Court rejected this, holding that procedural safeguards cannot be circumvented by a standard waiver form.

Conclusion: The detention and confiscation without issuance of SCN and personal hearing violated Section 124 and principles of natural justice, rendering the order invalid.

Issue 2: Validity of pre-printed waiver of show cause notice and personal hearing

Relevant legal framework and precedents: Section 124 of the Customs Act requires written notice and opportunity for representation and hearing before confiscation or penalty. The provisos allow oral SCN only if requested by the person concerned. The Court in Amit Kumar and Makhinder Chopra held that pre-printed waivers do not satisfy these requirements.

Court's interpretation and reasoning: The Court held that a pre-printed waiver, especially one that is not clearly comprehensible, cannot be treated as a valid waiver of SCN or hearing. Such waivers undermine the right to be heard and violate natural justice. The Court noted that the practice of making tourists sign such waivers "shocks the conscience" and directed Customs to discontinue this practice.

Key evidence and findings: The petitioner signed a pre-printed form waiving SCN and personal hearing, but the Court found this was not a conscious, informed waiver compliant with law.

Application of law to facts: The Court applied the settled legal position that procedural safeguards cannot be waived by a standard form and that the Customs Department's reliance on such waivers is unlawful.

Treatment of competing arguments: Customs contended that the waiver was a conscious acceptance by the petitioner. The Court disagreed, emphasizing the need for clear, informed consent and opportunity to be heard.

Conclusion: The pre-printed waiver does not satisfy Section 124 and cannot be relied upon to dispense with SCN or personal hearing.

Issue 3: Whether the petitioner's act of not declaring jewellery at Green Channel constitutes violation warranting confiscation and penalty

Relevant legal framework: Under the Customs Act and Baggage Rules, goods exceeding free allowance must be declared at the Red Channel. Failure to declare constitutes a violation, attracting confiscation and penalty under Sections 111 and 112 of the Act.

Court's interpretation and reasoning: The petitioner admitted crossing the Green Channel without declaration and that the jewellery was recovered by Customs. The jewellery was appraised and valued at Rs. 7,44,582. The Customs Department declared the petitioner an "ineligible passenger" under Notification No. 50/2017-Cus and ordered absolute confiscation with a penalty of Rs. 1,00,000.

Key evidence and findings: The petitioner's statement under Section 108 admitted the acts of omission and commission. The jewellery was physically examined and appraised by the Jewellery Appraiser. The petitioner's authorized representative subsequently requested release of goods and offered to pay duty and penalty.

Application of law to facts: The Court accepted that the petitioner violated customs regulations by not declaring the jewellery. The valuation and classification were undisputed. However, the procedural irregularity in not issuing SCN and hearing rendered the confiscation order invalid.

Treatment of competing arguments: The petitioner claimed the jewellery was for personal use and did not belong to her. Customs emphasized the violation and statutory provisions. The Court acknowledged the violation but emphasized adherence to procedural safeguards.

Conclusion: The petitioner's non-declaration constituted a violation warranting confiscation and penalty, but procedural lapses vitiated the confiscation order.

Issue 4: Appropriate relief and penalty

Court's reasoning: While setting aside the confiscation order due to procedural non-compliance, the Court recognized the petitioner's violation. The Court imposed the penalty of Rs. 1,00,000/- as ordered by the Customs Department and directed payment of 50% warehousing/storage charges.

The Court directed release of the detained jewellery within four weeks upon payment of penalty and storage charges and upon receipt of proper communication from the petitioner if release is to an authorized representative.

Conclusion: Confiscation set aside; penalty and partial storage charges imposed; jewellery to be released accordingly.

3. SIGNIFICANT HOLDINGS

"The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law."

"Natural justice is not merely lip-service. It has to be given effect and complied with in letter and spirit."

"The practice of making tourists sign undertaking in a standard form waiving the show cause notice and personal hearing is contrary to the provisions of Section 124 of the Act... The Customs Department is expected to follow the principles of natural justice in each case where goods are confiscated."

"No order confiscating any goods or imposing any penalty on any person shall be made unless the person is given a written notice of grounds, an opportunity to make written representation and a reasonable opportunity of being heard." (Section 124 of the Customs Act, 1962)

"The petitioner's detention and confiscation of jewellery without issuance of show cause notice and personal hearing is unsustainable in law."

"The detained jewellery is liable to be released upon payment of penalty and storage charges, notwithstanding the violation, due to procedural infirmities in the confiscation order."

The core legal questions considered by the Court include:

- Whether the detention and confiscation of the jewellery by the Customs Department without issuance of a show cause notice (SCN) and without granting a personal hearing is valid under the Customs Act, 1962.

- Whether a pre-printed waiver signed by the petitioner, purportedly waiving the right to SCN and personal hearing, can substitute the statutory requirement of issuance of SCN and hearing under Section 124 of the Customs Act.

- The applicability and interpretation of Section 124 of the Customs Act, 1962, which mandates issuance of SCN and opportunity of hearing before confiscation of goods or imposition of penalty.

- The legitimacy of the Customs Department's reliance on an oral SCN or waiver thereof in the context of the petitioner's case.

- The appropriate relief and penalty in light of the procedural irregularities and the petitioner's admission of non-declaration of dutiable goods.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of detention and confiscation without issuance of Show Cause Notice and personal hearing

The relevant legal framework is Section 124 of the Customs Act, 1962, which requires that before confiscating goods or imposing penalty, the Customs Department must issue a written notice specifying grounds for confiscation, allow a reasonable time for written representation, and provide an opportunity for personal hearing. The section also allows, at the request of the person concerned, the issuance of an oral SCN instead of a written one.

The Court examined the Order-in-Original passed by the Customs Department which ordered absolute confiscation of the jewellery and imposed a penalty of Rs. 1,00,000/-. It was noted that no formal SCN was issued; rather, the Department relied on a pre-printed waiver form signed by the petitioner, which purportedly waived the issuance of SCN and personal hearing.

Precedents considered include Amit Kumar v. The Commissioner of Customs and Makhinder Chopra vs Commissioner of Customs, where this Court held that such pre-printed waivers cannot substitute the statutory requirement of SCN and hearing under Section 124. The Court emphasized that natural justice principles require that affected persons cannot be condemned unheard, and that printed waivers which are not comprehensible to a layperson and which waive fundamental rights shock the conscience of the Court.

The Court reasoned that the purported oral SCN and waiver signed by the petitioner did not satisfy the procedural safeguards mandated by the Act. The waiver was neither a proper declaration nor a conscious informed consent compliant with Section 124. The Court reiterated that natural justice is not mere lip service but must be complied with in letter and spirit.

On application of law to facts, since the petitioner was not issued a proper SCN and was not granted a personal hearing, the detention and confiscation of the jewellery were held to be contrary to law and unsustainable.

Competing arguments by the Customs Department relying on the waiver were rejected based on the Court's prior rulings and the statutory mandate.

Issue 2: Legitimacy of reliance on pre-printed waiver forms in Customs proceedings

The Court analyzed the Customs Department's practice of obtaining pre-printed waivers from travellers, which purportedly waive their right to SCN and personal hearing. The Court held that such practice is illegal and contrary to the provisions of Section 124 of the Customs Act.

The Court referred to its prior decisions which categorically held that such waivers are not valid, as they do not amount to a proper SCN or hearing and violate principles of natural justice. The Court directed the Customs Department to discontinue this practice and to comply strictly with the statutory requirements in future cases.

Issue 3: Appropriate relief and penalty

Although the Court set aside the order of absolute confiscation due to procedural lapses, it recognized that the petitioner admitted to non-declaration of dutiable goods and agreed to pay customs duty and penalty.

Accordingly, the Court directed release of the detained jewellery subject to payment of the penalty of Rs. 1,00,000/- and 50% of warehousing/storage charges. The Court allowed the petitioner to collect the jewellery through an authorized representative upon proper communication.

3. SIGNIFICANT HOLDINGS

The Court held:

"The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law. The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainable in law."

Further, the Court established the principle that:

"Natural justice is not merely lip-service. It has to be given effect and complied with in letter and spirit."

And:

"The practice of making tourists sign undertaking in a standard form waiving the show cause notice and personal hearing is contrary to the provisions of Section 124 of the Act. The Customs Department is directed to discontinue the said practice and to follow the principles of natural justice in each case where goods are confiscated."

On the final determinations:

- The absolute confiscation order was set aside due to non-compliance with Section 124.

- The detained jewellery was ordered to be released upon payment of penalty and storage charges.

- The petitioner's waiver of SCN and hearing was held invalid and cannot be relied upon to bypass statutory safeguards.

1. Whether the non-issuance of a Show Cause Notice (SCN) and denial of personal hearing violates principles of natural justice and statutory requirements under the Customs Act, 1962.

2. Whether a pre-printed waiver of SCN and personal hearing signed by the passenger can be considered valid and compliant with Section 124 of the Customs Act.

3. Whether the gold bangles worn by the petitioner qualify as "personal effects" under the Baggage Rules, 2016, and are thus exempt from customs duty and detention.

4. The applicability and interpretation of the Baggage Rules, 2016, particularly concerning jewellery brought by passengers returning to India.

5. The validity of the Customs Department's Order-in-Original confiscating the gold bangles and imposing penalties.

6. The extent to which precedents and Supreme Court rulings affect the treatment of jewellery as personal effects and the procedural requirements for confiscation.

Issue 1: Validity of Non-Issuance of Show Cause Notice and Denial of Personal Hearing

The legal framework mandates issuance of a SCN and opportunity for personal hearing before confiscation of goods under Section 124 of the Customs Act, 1962. The Court examined whether the petitioner validly waived these rights by signing a pre-printed waiver form.

Precedents such as Amit Kumar v. The Commissioner of Customs and Mr Makhinder Chopra vs. Commissioner of Customs were pivotal. These decisions held that a pre-printed waiver of SCN and personal hearing is contrary to law and violates natural justice. The Court emphasized that such waiver forms cannot substitute for the statutory requirement of issuing a SCN and granting a hearing.

The Court found that the petitioner's waiver was a standard pre-printed form, which cannot be deemed a valid oral SCN compliant with Section 124. Therefore, the non-issuance of SCN and denial of personal hearing vitiated the entire confiscation process.

The Customs Department's reliance on the waiver to deny procedural safeguards was rejected, and the Court set aside the Order-in-Original to the extent it ordered absolute confiscation based on this procedural irregularity.

Issue 2: Classification of the Detained Articles as Personal Effects under the Baggage Rules, 2016

The Court analyzed the Baggage Rules, 2016, particularly Rules 2(vi), 3, and 5, which define "personal effects" and prescribe duty-free allowances for used personal effects and jewellery brought into India by returning residents or tourists.

Rule 2(vi) excludes jewellery from personal effects in a general sense, but Rule 5 allows duty-free clearance of jewellery up to specified weight and value limits depending on the passenger's gender and residency status. Annexure-I excludes certain items, including gold or silver in any form other than ornaments, from duty-free allowance.

Key precedents, including the Supreme Court's ruling in Directorate of Revenue Intelligence v. Pushpa Lekhumal Tolani, clarified that jewellery bona fide in personal use cannot be completely excluded from personal effects. The Court emphasized that used personal jewellery worn by passengers is exempt from customs duty and is part of personal effects. The newness or proximity of purchase is irrelevant.

The Division Bench decision in Saba Simran v. Union of India further distinguished "personal jewellery" from "jewellery" and held that personal jewellery worn by passengers is not subject to the monetary caps applicable to newly acquired jewellery under the Rules.

The Supreme Court's dismissal of the Union of India's Special Leave Petition challenging this interpretation reinforced the binding nature of this legal position.

Applying these principles, the Court held that the petitioner's gold bangles, worn during the pilgrimage and clearly used personal effects, fall within the exemption under the Baggage Rules and thus should not have been detained or confiscated.

Issue 3: Validity of the Customs Department's Order-in-Original Confiscating the Gold Bangles and Imposing Penalty

The Customs Department's Order-in-Original dated 1st August 2024 declared the petitioner an "ineligible passenger" under Notification No. 50/2017-Customs and ordered absolute confiscation of the two gold bangles weighing 115 grams, along with a penalty of Rs. 70,000/- under Sections 112(a) and 112(b) of the Customs Act.

The Court noted that the petitioner had opted for the Green Channel but was intercepted after crossing it, and the bangles were recovered during baggage search. The petitioner admitted omission in not declaring the items but also stated willingness to pay duty and penalty.

However, since the detention and confiscation were based on a flawed procedure (no valid SCN and hearing) and the articles were bona fide personal effects exempt under the Baggage Rules, the confiscation order was unsustainable.

The Court set aside the order to the extent of confiscation but upheld the imposition of penalty and directed payment of 50% of warehousing charges, balancing procedural lapses and the petitioner's admission of omission.

Issue 4: Treatment of Competing Arguments

The Customs Department argued that the petitioner violated customs rules by not declaring the gold bangles and that the waiver of SCN and hearing was valid. The Department also contended that the bangles exceeded the duty-free allowance limits and thus were liable for confiscation.

The Court rejected the waiver argument based on binding precedents emphasizing procedural fairness and natural justice. It also rejected the Department's interpretation that all jewellery is excluded from personal effects, relying on the Supreme Court's and Division Bench's rulings that used personal jewellery worn by passengers is exempt.

The petitioner's argument that the bangles were personal effects worn during pilgrimage and thus exempt was accepted. The Court recognized the petitioner's admission of omission but balanced this with the legal protections afforded to bona fide personal effects and procedural safeguards.

Significant Holdings

"The pre-printed standard waiver of SCN is contrary to law as it violates the basic principles of natural justice."

"The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124."

"Jewellery that is bona fide in personal use by the tourist would not be excluded from the ambit of personal effects as defined under the Baggage Rules."

"Used jewellery worn by the passenger would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department."

"The detained articles being personal effects of the Petitioner, the detention of the same itself would be contrary to law."

"The impugned Order-in-Original dated 1st August, 2024 is set aside to the extent that it orders absolute confiscation."

The Court established core principles that procedural fairness under the Customs Act requires issuance of SCN and personal hearing, which cannot be waived by standard pre-printed forms. It confirmed that used personal jewellery worn by passengers is exempt from customs duty as personal effects under the Baggage Rules. Confiscation orders based on procedural lapses and misclassification of such jewellery are unsustainable.

Accordingly, the Court ordered release of the detained gold bangles to the petitioner, upheld the penalty imposition, and required partial payment of warehousing charges, thus balancing legal protections with regulatory compliance.

- Whether the detention and confiscation of the gold chain and three iPhones by the Customs Department without issuance of a valid show cause notice and personal hearing is lawful under the Customs Act, 1962.

- Whether the pre-printed waiver obtained by the Customs Department from the Petitioner, purportedly waiving the issuance of show cause notice and personal hearing, satisfies the requirements of Section 124 of the Customs Act.

- Whether the gold chain and the iPhones should be released to the Petitioner, subject to payment of redemption fine and customs duty, or confiscated absolutely.

- Whether the Customs Department's inconsistent approach in confiscation or redemption of electronic devices such as iPhones is justified.

- The validity and applicability of the impugned Order-in-Original and Order-in-Appeal directing confiscation of the goods.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Lawfulness of detention and confiscation without valid show cause notice and personal hearing

Relevant legal framework and precedents: Section 124 of the Customs Act, 1962 mandates that before confiscation of goods or imposition of penalty, the owner must be given a written notice specifying grounds, an opportunity to make a representation, and a reasonable opportunity of being heard. The provisos allow oral show cause notice at the request of the person concerned but do not permit blanket waivers of this right.

Precedents relied upon include Amit Kumar v. The Commissioner of Customs and Mr. Makhinder Chopra v. Commissioner of Customs, where this Court held that pre-printed waivers of show cause notice and personal hearing are fundamentally violative of natural justice and Section 124 requirements. The Court emphasized that natural justice is not mere lip service and that such waivers are not valid substitutes for proper notice and hearing.

Court's interpretation and reasoning: The Court found that the Customs Department relied solely on a standard pre-printed waiver form signed by the Petitioner, which purported to waive issuance of show cause notice and personal hearing. The Court held such a waiver invalid, as it does not comply with the statutory mandate of Section 124. The Court observed that the waiver was neither comprehensible nor voluntarily and consciously signed with full understanding of rights, and thus cannot substitute for the statutory show cause notice and hearing.

Key evidence and findings: The absence of any written or oral show cause notice issued by the Customs Department, reliance on the pre-printed waiver form, and the prior judicial pronouncements invalidating such waivers.

Application of law to facts: Since no valid show cause notice was issued and no personal hearing was granted, the detention and confiscation orders are contrary to law and violate principles of natural justice under Section 124.

Treatment of competing arguments: The Customs Department argued that the waiver form sufficed to dispense with show cause notice. The Court rejected this, emphasizing the statutory safeguards and the need for meaningful opportunity to be heard.

Conclusions: The orders of detention and confiscation without valid show cause notice and hearing are unsustainable. The detention itself is illegal and liable to be set aside.

Issue 2: Confiscation versus redemption of the gold chain and iPhones

Relevant legal framework and precedents: Under the Customs Act, confiscation or redemption of goods is governed by Sections 111(d), 111(j), 111(m), 112(a), 112(b), and 125(3). The Court referred to the decision in Chakshu Garg v. Commissioner of Customs, where iPhones were permitted to be redeemed on payment of a redemption fee.

Court's interpretation and reasoning: The impugned Order-in-Original permitted redemption of the gold chain on payment of a fine and customs duty but ordered absolute confiscation of the iPhones. The Court noted the inconsistency in the Customs Department's approach towards similar electronic devices. The Court directed the Revisional Authority to reconsider the confiscation of iPhones in light of the Chakshu Garg precedent, allowing redemption subject to payment of a reasonable redemption fee.

Key evidence and findings: The gold chain was valued at Rs. 7,40,837/- and weighed 117 grams; the three iPhones were valued at Rs. 3,56,420.10/-. The Petitioner claimed the gold chain was worn and the iPhones were for personal use. The Customs Department's Orders imposed a fine of Rs. 1,10,000/- on the Petitioner and allowed redemption only for the gold chain.

Application of law to facts: Given the settled law on redemption of electronic devices and the absence of any show cause notice, the Court found that the iPhones should not be absolutely confiscated without an opportunity for redemption. The gold chain's release was permitted upon payment of redemption fine and storage charges.

Treatment of competing arguments: The Customs Department maintained the confiscation order for iPhones. The Court, however, emphasized consistency and fairness, directing reconsideration by the Revisional Authority.

Conclusions: The gold chain is to be released on payment of redemption fine and storage charges. The iPhones' confiscation is to be reconsidered, with the Revisional Authority to decide on redemption within two months.

Issue 3: Validity of pre-printed waiver forms and adherence to natural justice principles

Relevant legal framework and precedents: Section 124 of the Customs Act and the principles of natural justice require meaningful notice and hearing. The Court referred extensively to Amit Kumar and Makhinder Chopra decisions, which declared pre-printed waiver forms invalid.

Court's interpretation and reasoning: The Court reiterated that natural justice cannot be bypassed by mechanical reliance on pre-printed waivers. The Court observed that such waivers are incomprehensible to laypersons and shock the conscience of the Court, especially in cases involving tourists and travelers.

Key evidence and findings: The waiver form signed by the Petitioner was standard and pre-printed, lacking clarity and voluntariness.

Application of law to facts: The Customs Department's practice of obtaining such waivers is contrary to law and is directed to be discontinued.

Treatment of competing arguments: The Customs Department's reliance on the waiver was rejected outright.

Conclusions: The practice of obtaining pre-printed waivers for show cause notice and hearing is unlawful and must cease. The Customs Department must comply with Section 124 and principles of natural justice in every case.

3. SIGNIFICANT HOLDINGS

- "Natural justice is not merely lip-service. It has to be given effect and complied with in letter and spirit."

- "Printed waivers of this nature would fundamentally violate rights of persons who are affected."

- "The printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124."

- "The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainable in law."

- "The Customs Department is directed to discontinue the said practice [of making tourists sign standard waivers] and to follow the principles of natural justice in each case where goods are confiscated in terms of Section 124 of the Act."

- The Court held that the continued detention or seizure of goods without valid show cause notice and hearing is untenable in law.

- The gold chain is to be released upon payment of redemption fine and storage charges.

- The Revisional Authority is directed to decide on the confiscation or redemption of the iPhones within two months, considering the precedent permitting redemption upon payment of a reasonable fee.

The core legal questions considered by the Court in this matter are:

• Whether the Customs Department can rely on a pre-printed waiver signed by the petitioner to dispense with the issuance of a show cause notice (SCN) and personal hearing as required under Section 124 of the Customs Act, 1962.
• Whether the detention of the petitioner's gold chain without issuance of a show cause notice and without affording a personal hearing is legally sustainable.
• The applicability and interpretation of Section 124 of the Customs Act, 1962, particularly the procedural safeguards it mandates before confiscation or detention of goods.
• The validity and effect of statements or waivers recorded under Section 108 of the Customs Act in lieu of formal show cause notices and hearings.
• The procedural obligations of the Customs Department regarding issuance of show cause notices within the stipulated time frame under Section 110 of the Customs Act.
• The appropriate relief and directions in light of the petitioner's willingness to re-export the detained jewellery.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Pre-Printed Waiver of Show Cause Notice and Personal Hearing

Legal Framework and Precedents: Section 124 of the Customs Act, 1962 mandates that no confiscation or penalty order shall be passed without (a) prior written notice specifying grounds of confiscation, (b) opportunity to make written representation, and (c) reasonable opportunity of being heard. The statute allows for oral SCN and representation only if requested by the person concerned. The Court relied heavily on two recent precedents where this issue was exhaustively examined: Amit Kumar v. Commissioner of Customs and Makhinder Chopra v. Commissioner of Customs.

Court's Interpretation and Reasoning: The Court held that a pre-printed waiver form, which purportedly waives the issuance of SCN and personal hearing, does not satisfy the statutory requirements of Section 124. Such waivers are often incomprehensible to the common person and shock the conscience of the Court. The Court emphasized that natural justice is not mere lip service but must be complied with in letter and spirit. The requirement of a proper declaration consciously signed by the person concerned is essential, and even then, an opportunity of hearing must be afforded.

Key Evidence and Findings: The petitioner had signed a standard waiver form recorded under Section 108 of the Act, which the Customs Department relied upon to justify non-issuance of SCN and non-affording of personal hearing. However, no show cause notice had been issued, and no personal hearing granted to the petitioner. The Court found this practice contrary to law.

Application of Law to Facts: The Customs Department's reliance on the pre-printed waiver was rejected. The Court held that the waiver cannot be deemed to be an oral SCN compliant with Section 124. The detention of the jewellery without issuance of SCN and hearing was thus contrary to the statutory mandate.

Treatment of Competing Arguments: The Customs Department argued that the waiver signed under Section 108 sufficed as compliance with Section 124. The Court rejected this, relying on precedents and statutory interpretation, stressing that procedural safeguards cannot be circumvented by standard form waivers.

Conclusion: The pre-printed waiver of SCN and personal hearing is invalid and cannot substitute the statutory requirements under Section 124 of the Customs Act.

Issue 2: Detention of Goods Without Issuance of Show Cause Notice and Personal Hearing

Legal Framework and Precedents: Section 124 of the Customs Act prescribes the procedure for issuance of SCN and hearing before confiscation or penalty. Section 110 prescribes a six-month period for issuance of SCN, extendable by six months under prescribed conditions.

Court's Interpretation and Reasoning: The Court noted that the detention of goods without issuance of SCN and hearing is impermissible. The statutory timeline for issuance of SCN had expired in the present case, as more than one year had elapsed without issuance of any SCN. This renders the detention unlawful.

Key Evidence and Findings: The petitioner's gold chain was detained on 26th October 2023. No SCN has been issued till date, and the petitioner has not been afforded a hearing. The Customs Department's failure to comply with statutory timelines and procedural safeguards was evident.

Application of Law to Facts: The Court applied the statutory provisions strictly and found the detention untenable in law. The absence of SCN and hearing violated the petitioner's rights under the Act and principles of natural justice.

Treatment of Competing Arguments: The Customs Department did not dispute the absence of SCN but relied on the waiver. The Court rejected this reliance, underscoring the mandatory nature of SCN and hearing.

Conclusion: The detention of the petitioner's jewellery without issuance of SCN and personal hearing is illegal and must be set aside.

Issue 3: Directions Regarding Release of Detained Jewellery and Future Compliance

Legal Framework: The Customs Act allows for release of goods on furnishing an undertaking and payment of charges. The Court's supervisory jurisdiction under Articles 226 and 227 of the Constitution empowers it to issue appropriate directions.

Court's Interpretation and Reasoning: Since the petitioner has expressed willingness to re-export the jewellery, the Court directed that the petitioner should appear for appraisement and furnish an undertaking for re-export. Upon payment of storage and warehousing charges, the jewellery should be released. The Court also permitted release through an authorized representative upon proper communication.

Key Evidence and Findings: The petitioner's willingness to re-export and cooperate was noted. The jewellery had not yet been appraised, and no formal proceedings had been initiated by Customs.

Application of Law to Facts: The Court balanced the petitioner's rights and the Customs Department's regulatory role, facilitating release subject to conditions ensuring compliance.

Treatment of Competing Arguments: No significant opposition to release was recorded. The Customs Department was directed to discontinue the practice of obtaining pre-printed waivers in future cases.

Conclusion: The detained jewellery shall be released after appraisement, undertaking for re-export, and payment of charges. The Customs Department must adhere to natural justice principles in future cases.

3. SIGNIFICANT HOLDINGS

The Court held, preserving verbatim key reasoning from Amit Kumar (supra):

"The oral SCN cannot be deemed to have been served in this manner as is being alleged by the Department. If an oral SCN waiver has to be agreed to by the person concerned, the same ought to be in the form of a proper declaration, consciously signed by the person concerned. Even then, an opportunity of hearing ought to be afforded, inasmuch as, the person concerned cannot be condemned unheard in these matters. Printed waivers of this nature would fundamentally violate rights of persons who are affected. Natural justice is not merely lip-service. It has to be given effect and complied with in letter and spirit."

"This Court is of the opinion that the printed waiver of SCN and the printed statement made in the request for release of goods cannot be considered or deemed to be an oral SCN, in compliance with Section 124. The SCN in the present case is accordingly deemed to have not been issued and thus the detention itself would be contrary to law. The order passed in original without issuance of SCN and without hearing the Petitioner, is not sustainable in law."

"The issuance of a show cause notice before confiscation of goods by the Customs officials is covered under Section 124 of the Act, which reads as under: ... The Section provides a three-fold requirement: (i) a notice in writing informing the grounds of confiscation; (ii) An opportunity of making a representation in writing against the said grounds of confiscation; (iii) A reasonable opportunity of personal hearing."

"In view of the above observations, it is clear that the undertaking signed by the Petitioner in the present case cannot be sustained in law. Accordingly, the Customs Department has failed to satisfy the requirements of Section 124 of the Act in the present case. Therefore, the detention of the Petitioner's gold chain has to be set aside."

"Since, the Court has made clear that the practice of making tourists sign undertaking in a standard form waiving the show cause notice and personal hearing is contrary to the provisions of Section 124 of the Act, hereinafter, the Customs Department is directed to discontinue the said practice. The Customs Department is expected to follow the principles of natural justice in each case where goods are confiscated in terms of Section 124 of the Act."

Core principles established include:

• Pre-printed waivers of show cause notice and personal hearing are invalid and violate natural justice.
• Section 124 mandates issuance of SCN and opportunity for hearing before confiscation or penalty.
• Detention or confiscation without compliance with Section 124 is illegal and unsustainable.
• The Customs Department must discontinue the practice of obtaining standard waivers and adhere strictly to procedural safeguards.
• Petitioners detained goods must be released if statutory procedures are not followed within prescribed timelines.

Final determinations:

• The detention of the petitioner's gold chain without issuance of SCN and personal hearing is set aside.
• The petitioner shall appear for appraisement and furnish undertaking for re-export; upon payment of charges, the jewellery shall be released.
• The Customs Department is directed to discontinue the practice of obtaining pre-printed waivers and comply with natural justice principles in all future cases.

The Court also examined the validity of clarifications issued by the Central Board of Indirect Taxes and Customs (CBIC), which had taken the position that unlocking or activation of mobile phones amounts to "taken into use," thus denying drawback benefits. The Court considered whether these clarifications were consistent with the statutory provisions and judicial precedents.

Additionally, the Court addressed procedural aspects regarding the processing of duty drawback claims and the entitlement to interest under Section 75A of the Customs Act in cases where claims were delayed due to legal ambiguity.

Issue-wise Detailed Analysis

1. Whether unlocking/activation of mobile phones constitutes "taken into use" under the Duty Drawback Rules and Customs Act, thereby disqualifying exporters from claiming duty drawback benefits.

The Court relied heavily on the precedent set in the batch of cases led by M/s AIMS Retail Services Private Limited v. Union of India & Ors., where a detailed analysis was undertaken. The legal framework involved Section 75 of the Customs Act and Rule 3 of the Duty Drawback Rules, which provide that duty drawback is not payable if the goods have been "taken into use" before export.

The Court interpreted "taken into use" in the context of prior decisions where products utilized for demonstration, research, or exhibition-activities that diminish the product's value-were held to be disqualified from drawback. However, the unlocking or activation of mobile phones was distinguished from such uses. Unlocking was characterized as a mere configuration step that enables the phone to be used in the destination country's network, without utilizing or consuming any of the phone's features that would diminish its value.

Key findings included that unlocking involves minimal use, such as switching on the phone, inserting a SIM card, and making a brief call, or in some cases, "air-activation" without unboxing. The Court emphasized that unlocking enhances the product's usability and value by enabling seamless operation in foreign jurisdictions, rather than diminishing it. It noted that if phones were exported locked, consumers abroad would face high costs or functional limitations, making the product ineffective and expensive.

The Court reasoned that the process of unlocking is akin to configuring the phone to the destination country's network standards, which is necessary for the intended use of the product. It rejected the CBIC's interpretation that unlocking constitutes "taken into use," holding that such a view is not sustainable and goes beyond the statutory provisions.

Competing arguments from the CBIC and Customs authorities, which relied on the clarifications issued in 2020 and 2021 to deny drawback benefits, were found to be inconsistent with the law and judicial precedents. The Court quashed these clarifications and the impugned orders based thereon.

2. Validity of CBIC Clarifications dated 25th September, 2020 and 14th December, 2021

The CBIC had issued clarifications that effectively denied drawback benefits on exported mobile phones that were unlocked or activated, interpreting unlocking as "taken into use." The Court held that these clarifications exceeded the scope of Section 75 and the Duty Drawback Rules. They improperly imposed an interpretation that was not supported by the statutory language or judicial precedent.

The Court quashed these clarifications, emphasizing that in cases of ambiguity regarding benefits to exporters, the interpretation should favor the exporters. The clarifications were held to be ultra vires and contrary to the legislative intent behind duty drawback provisions.

3. Procedural directions regarding processing of duty drawback claims and payment of interest

The Court directed that all individual cases be processed by the Customs Department in accordance with law, consistent with the legal principles established. It clarified that if drawback claims are processed and granted within three months from the date of the order, no interest under Section 75A of the Customs Act would be payable. However, if the processing exceeds three months, the Customs Department would be liable to pay statutory interest on eligible drawback amounts.

The Court also noted that interest was not payable for the prior period due to the existence of legal ambiguity on the issue of unlocking and drawback eligibility.

4. Impact of the judgment on the mobile phone manufacturing and export industry

The Court observed that with the growth of mobile phone manufacturing and assembly in India, exports are expected to increase significantly. It recognized that the ability to configure phones for use in foreign jurisdictions is essential to maintaining the competitiveness and functionality of exported products. Denying drawback benefits on the basis of unlocking would be detrimental to exporters and contrary to the policy objectives of promoting exports.

Significant Holdings

"The unlocking/activating of the mobile phones as per the procedures adopted by the Petitioners herein is mere 'Configuration' of the product to make it usable and does not constitute 'taken into use' under proviso to Rule 3 of the Duty Drawback Rules."

"The Clarifications go beyond Section 75 of the Act and the Duty Drawback Rules since the interpretation sought to be given by CBIC is that unlocking/activation of mobile phones constitutes 'taken into use'. The said interpretation which is contained in the Clarifications is not sustainable."

"Drawbacks are benefits which are given to exporters and in the case of any ambiguity such benefits should go in favour of the exporters and not the other way round."

"The unlocking/activation of the mobile phone merely makes the mobile phone more usable in the destination country and the same would therefore not constitute 'taken into use' under proviso to Rule 3 of Duty Drawback Rules."

"If the drawbacks are processed and granted to the respective Petitioners for the relevant period as per law, within a period of three months, no interest would be liable to be paid under Section 75A of the Act. If, however, the same is not effected within a period of three months, upon the expiry of three months interest would be liable to be paid by the Customs Department on the eligible duty drawbacks to the respective Petitioner in accordance with law."

Final determinations included setting aside the impugned orders denying drawback benefits on unlocked mobile phones, quashing the CBIC clarifications, and directing the Customs Department to process drawback claims in accordance with law. The Court emphasized that unlocking does not amount to "taken into use" and that exporters are entitled to duty drawback benefits on such products.

- Whether the appellant, a customs broker, violated Regulation 13(d) and (e) of the Customs House Agents Licensing Regulations, 2004, by accepting the Importer Exporter Code (IEC) of an import firm from a person not authorized as a director, thereby abetting mis-declaration and contravening the Customs Act, 1962.

- Whether penalty under sections 112 and 114AA of the Customs Act, 1962 was rightly imposed on the appellant for abetment and dealing with goods liable to confiscation.

- Whether the appellant can be held liable for the acts or omissions of the importer, specifically in relation to lending of IEC and mis-declaration.

- Whether penalty under section 114AA of the Customs Act can be imposed without evidence of connivance or knowledge of the appellant.

- Whether the penalty under section 112 of the Customs Act was validly imposed without specifying the applicable sub-section.

- Whether statements recorded under section 108 of the Customs Act can be relied upon without following the procedure prescribed under section 138B of the Customs Act.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Violation of Regulation 13(d) and (e) of the Customs House Agents Licensing Regulations, 2004

The appellant was alleged to have accepted the IEC of an import firm from a person who was not the director, thus violating the obligation to exercise due diligence under Regulation 13(d) and (e). These provisions require the Customs House Agent (CHA) to advise clients to comply with the Customs Act, report non-compliance to authorities, and ascertain correctness of information related to cargo clearance.

The Additional Commissioner and Commissioner (Appeals) upheld the penalty, relying largely on the allegations in the show cause notice, stating the appellant "knowingly and deliberately abetted" the unauthorized use of IEC. However, the Tribunal noted that the orders merely reproduced the allegations without independent examination or findings. Furthermore, the appellant's license revocation proceedings under the Licensing Regulations had been set aside by the Tribunal, undermining the finding of violation of these regulations.

The Tribunal emphasized that as a licensed customs broker, the appellant acts on documents provided by the importer and is not automatically responsible for verifying the genuineness of the IEC holder beyond the documents presented. The absence of independent findings or evidence of due diligence failure negated the alleged violation.

Issue 2: Imposition of penalty under sections 112 and 114AA of the Customs Act, 1962

Section 112 imposes penalties for various customs violations, while section 114AA penalizes knowingly or intentionally making false declarations or documents in customs transactions.

The penalty was imposed on the basis that the appellant abetted mis-declaration and dealt with goods liable to confiscation. The authorities alleged the appellant was aware that the IEC was provided by an unauthorized person and thus connived in mis-declaration.

The Tribunal, however, relied on precedents such as D.S. Cargo Service and Prime Forwarders, which held that mere handling of documents or acting on importer-provided information without knowledge or connivance in mis-declaration does not attract penalty. The Tribunal noted the absence of any material showing appellant's knowledge or intent to abet wrongdoing.

Regarding section 114AA, the Tribunal observed that lending of IEC is not an offence under the Customs Act and penalty under this section requires proof of knowingly making false declarations. The appellant's mere acceptance of the IEC without evidence of falsehood or misrepresentation did not satisfy this requirement.

Issue 3: Liability of customs broker for importer's misconduct, specifically lending of IEC

The appellant contended that lending of IEC is not an offence and cannot attract penalty. The Tribunal agreed, citing the decision in Gopal Agarwal, which held that importing goods in the name of the IEC holder is lawful and lending IEC is not prohibited under the Customs Act. Penalty under Customs Act cannot be imposed for such lending, which is governed under the Foreign Trade (Development and Regulation) Act, 1992, if at all.

Issue 4: Requirement to specify sub-section of Section 112 for penalty imposition

The appellant argued that the penalty order did not specify the sub-section of section 112 invoked, rendering the penalty invalid. The Tribunal agreed, referring to decisions including S.G. Steels and Aadil Majeed Banday, which emphasize that specific sub-sections must be cited to clarify the nature of the offence and the basis of penalty.

Moreover, sub-section 112(b) requires that the person be aware of the offending nature of the goods. Absence of such knowledge negates penalty. The impugned orders failed to specify the sub-section or establish knowledge, making the penalty unsustainable.

Issue 5: Admissibility of statements recorded under section 108 of the Customs Act

The Commissioner (Appeals) relied on statements recorded under section 108 by the appellant and others to impose penalty. The appellant challenged the admissibility, citing procedural non-compliance under section 138B of the Customs Act.

The Tribunal analyzed relevant provisions and precedents, including the decision in M/s. Surya Wires Pvt. Ltd., which clarified that statements recorded under section 108 during inquiry are admissible only if the person making the statement is examined as a witness before the adjudicating authority and the authority forms an opinion to admit the statement in evidence, with opportunity for cross-examination.

Failure to follow this mandatory procedure renders such statements inadmissible. Since the procedure was not followed, reliance on these statements was improper.

3. SIGNIFICANT HOLDINGS

"The order passed by the Additional Commissioner and the Commissioner (Appeals) are almost reproduction of the allegations made in the show cause notice. It was incumbent upon the Additional Commissioner and the Commissioner (Appeals) to have independently examined the issues and record findings."

"As a holder of custom broker license issued under the Licensing Regulations, the appellant merely acts on the basis of the documents provided by the importer. The department has imposed penalty on the appellant under section 114AA of the Customs Act for the reason that the appellant connived with the importer. In the absence of anything on record to show that the appellant connived with the importer, penalty under section 114AA of the Customs Act could not have been imposed upon the appellant."

"Merely IEC holder lending the IEC to a third party is not an offence under the Customs Act and penalty for violation of Section 7 of Foreign Trade (Development and Regulation) Act, 1992 cannot be imposed under Customs Act."

"Penalty has also been imposed upon the appellant under section 112 of the Customs Act without specifying which particular sub-section of this section would be applicable. Even if section 112(b) of the Customs Act was to be invoked, penalty could be imposed only if the appellant was aware of the offending nature of the goods. In the present case there is nothing on the record to show that the appellant was aware of the nature of the imported goods."

"Statements recorded under section 108 of the Customs Act during inquiry shall be relevant for proving the truth of facts contained therein only when the person who made the statement is examined as a witness before the adjudicating authority and the adjudicating authority forms an opinion that the statement should be admitted in evidence, with opportunity for cross-examination. Failure to comply with this procedure renders such statements inadmissible."

The final determination was that the penalties imposed under sections 112 and 114AA of the Customs Act, 1962, on the appellant were unsustainable due to lack of independent findings, absence of evidence of knowledge or connivance, failure to specify applicable sub-section, and improper reliance on inadmissible statements. The appeal was allowed and the impugned order set aside.

• Whether the disputed goods are classifiable as parts of air conditioners under Customs Tariff Item (CTI) 8415 90 00, as contended by the department, or under various other CTIs (8414 59 30, 8421 39 90, 8481 10 90, 8538 10 90, 9032 10 10) as claimed by the appellant;
• The applicability and interpretation of Note 2(a) and Note 2(b) to Section XVI of the Customs Tariff in the classification of parts of machines;
• The extent to which the HSN Explanatory Notes and precedents guide classification in cases where goods are parts of machines but also goods in their own right under Chapter 84 or 85;
• Whether the classification claimed by the appellant, which was self-assessed and accepted initially, can be revisited and whether estoppel applies;
• The correctness of the Principal Commissioner's order imposing differential customs duty with interest and rejecting the appellant's classification;
• Whether interest and penalty provisions under the Customs Act apply to IGST demands under the Customs Tariff.

Issue-wise Detailed Analysis

1. Classification of Disputed Goods under Customs Tariff

The legal framework revolves around the Customs Tariff Act, 1975, specifically the First Schedule, Chapter 84 and 85, and the General Notes to Section XVI. The classification is governed by the General Rules for Interpretation of the Import Tariff and Notes to Section XVI, particularly Note 2(a) and 2(b).

Note 2(a) mandates that parts which are goods included in any headings of Chapter 84 or 85 (except certain specified headings) must be classified in their respective headings. Note 2(b) applies to other parts suitable for use solely or principally with a particular kind of machine and directs their classification with the machines of that kind.

The appellant contended that the disputed goods are themselves goods under various CTIs of Chapter 84 or 85 and thus fall squarely under Note 2(a). The department argued that the goods are specific parts of automobile air conditioners and, since the appellant classified them under "others" categories within those headings, Note 2(a) does not apply; hence, Note 2(b) requires classification under CTI 8415 90 00 as parts of air conditioners.

The Tribunal examined the HSN Explanatory Notes and relevant precedents, including the Supreme Court decision in Secure Meters Ltd., which clarified that Note 2(b) applies only if Note 2(a) is inapplicable. The Tribunal emphasized that goods which are themselves goods of Chapter 84 or 85 must be classified under their respective headings, even if they are parts of a machine. Resort to Note 2(b) is only when classification under Note 2(a) is not possible.

2. Classification of Individual Goods

The Tribunal scrutinized the technical characteristics and use of each disputed good:

• Blower: A centrifugal radial blower comprising blower wheels, motor, housing, designed to deliver large volumes of air at low pressure. It is used in vehicles with or without air conditioning and is classified under CTI 8414 59 30 ("industrial fans and blowers"). The Tribunal rejected the Principal Commissioner's reasoning that this heading covers only industrial blowers, noting that the heading explicitly includes "blowers" as a separate category from industrial fans.
• Filter: A multi-fibre paper cotton or engineered material filter used to filter gases in automobile air conditioners, correctly classifiable under CTI 8421 39 90 ("filtering or purifying machinery and apparatus for gases"). The Tribunal relied on the HSN Explanatory Notes confirming that gas filters are covered under this heading.
• Water Valve Assembly: A device controlling coolant flow in vehicle cabin heating, functioning like a tap. It falls under CTI 8481 80 90 ("taps, cocks, valves and similar appliances for pipes, boiler shells, tanks, vats or like"). The Tribunal noted that even specialized valves for particular machines remain in this heading.
• Thermostat: An automatic regulating instrument preventing evaporator freezing by controlling compressor voltage supply, classifiable under CTI 9032 10 10 ("thermostats used for refrigeration and air conditioning appliances and machinery"). Note 7(a) to Chapter 90 supports this classification.
• Control Panel: An injection moulded plastic plate forming the outer cover of a control panel, classifiable under CTI 8538 10 90 ("parts suitable for use solely or principally with the apparatus of headings 8535, 8536 or 8537").
• Module JCBHP: A device connected to the air conditioner performing automatic temperature control, effectively functioning as a thermostat, classifiable under CTI 9032 10 10.

The Tribunal held that these goods are goods in their own right under Chapter 84 or 85 and are not merely generic parts to be subsumed under the heading for parts of air conditioners.

3. Interpretation of Note 2(a) and Note 2(b) to Section XVI

The Tribunal emphasized the sequential application of Notes 2(a) and 2(b). Note 2(a) applies first and requires classification of parts that are themselves goods under Chapter 84 or 85 in their respective headings. Note 2(b) applies only if Note 2(a) is inapplicable, i.e., when the parts are not goods of Chapter 84 or 85 themselves.

The Principal Commissioner's reliance on the fact that the appellant's classification was under "others" categories was found to be insufficient to displace Note 2(a). The Tribunal clarified that the classification under "others" does not negate the applicability of Note 2(a) if the goods are themselves goods of Chapter 84 or 85. The Tribunal cited the Supreme Court's ruling in Secure Meters Ltd. and the Tribunal's own precedent in Intec Corporation, which confirm this principle.

4. Application of Law to Facts and Treatment of Competing Arguments

The appellant's detailed technical descriptions and functional analysis of the goods supported classification under their respective CTIs. The department's argument that the goods are parts of automobile air conditioners and therefore classifiable under CTI 8415 90 00 was rejected on the ground that mere use in air conditioners does not override the specific classification under Note 2(a).

The Tribunal found the Principal Commissioner erred in holding that the headings claimed by the appellant were not specific because they were under "others" categories. The Tribunal held that the headings, even if "others," are specific enough to cover the goods, especially when the goods are themselves goods of Chapter 84 or 85.

Regarding estoppel, the Tribunal noted that classification is a question of law and estoppel does not apply to classification matters, allowing the appellant to contest the classification despite earlier self-assessment.

On the issue of interest and penalty, the Tribunal did not uphold the differential duty demand and interest imposed by the Principal Commissioner, implicitly rejecting the department's claim to levy interest on IGST under the Customs Tariff in absence of machinery provisions.

5. Final Conclusions

The Tribunal concluded that the appellant's classification of the disputed goods under CTIs 8414 59 30, 8421 39 90, 8481 80 90, 8538 10 90, and 9032 10 10 was correct. The Principal Commissioner's order classifying all goods under CTI 8415 90 00 as parts of air conditioners was set aside. Consequently, the demand for differential customs duty with interest was quashed.

Significant Holdings

"Note 2(a) to Section XVI provides that parts which are goods included in any of the headings of Chapter 84 or 85 (other than certain specified headings) are in all cases to be classified in their respective headings."

"Note 2(b) would apply only if the items in question are not specifically classifiable under their respective headings."

"The headings claimed by the appellant, although under 'others', are specific enough to cover the goods as they are themselves goods of Chapter 84 or 85."

"Merely by virtue of being used in air conditioners, the goods do not merit classification under CTI 8415 90 00."

"The classification claimed by the appellant was correct and the differential basic customs duty with interest could not have been levied."

"Estoppel does not apply to classification matters."

The Tribunal's decision establishes the principle that classification of parts which are themselves goods under Chapter 84 or 85 must be governed by Note 2(a), and only when such classification is not possible should Note 2(b) be applied. The ruling clarifies the application of Section XVI Notes and HSN Explanatory Notes in classification disputes involving parts of machines, particularly automobile air conditioning components.

The core legal questions considered by the Tribunal were:

(a) Whether the appellant was involved in the smuggling of gold bars of foreign origin brought into India from China via Bhutan by the three intercepted persons;

(b) Whether the statements of the three intercepted persons, implicating the appellant, were sufficient and reliable evidence to impose penalty under Section 112(b) of the Customs Act, 1962 on the appellant;

(c) Whether the adjudicating authority had brought any corroborative evidence on record to establish the appellant's involvement in the smuggling activity;

(d) Whether the penalty imposed on the appellant under Section 112(b) of the Customs Act, 1962 was justified in the absence of direct or corroborative evidence beyond the statements of the intercepted persons.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) & (b): Involvement of the appellant in smuggling and sufficiency of intercepted persons' statements as evidence

The legal framework involves Section 112(b) of the Customs Act, 1962, which empowers imposition of penalty on persons involved in smuggling or illegal importation of goods. The burden lies on the Revenue to prove involvement of the appellant beyond reasonable doubt or on a preponderance of probabilities, supported by credible evidence.

The intercepted persons, apprehended while carrying 3 kgs of gold bars of foreign origin, confessed that the gold was smuggled into India from China via Bhutan and that the appellant had introduced them to a Bhutanese national for procuring the smuggled gold. Their statements implicated the appellant as the one who instructed them to procure gold from Bhutan and promised payment for the same.

However, the appellant's own statement recorded during investigation explicitly denied any involvement in smuggling. He stated that he and his brother operated a gold and silver refinery engaged only in melting and refining, not in retail sale or purchase of gold. He denied sending any of the intercepted persons to procure gold from Bhutan or having any knowledge of the Bhutanese national mentioned. He also denied maintaining any stock registers or bills related to purchase or sale of gold or silver.

The Court noted that the appellant never admitted the allegations during the proceedings and that the statements of the intercepted persons were the sole basis for implicating him. The appellant's denial was clear and categorical, and no direct or circumstantial evidence was presented by the Revenue to corroborate the intercepted persons' statements.

Issue (c): Corroborative evidence to establish involvement

The Tribunal examined whether the adjudicating authority had brought any corroborative evidence on record. It was found that no such evidence was produced to substantiate the appellant's involvement. The Revenue relied solely on the statements of the three intercepted persons, which were uncorroborated and contradicted by the appellant's own statement.

The absence of documentary evidence, financial records, or any material linking the appellant to the smuggling operation was significant. The appellant's statement that no gold was procured from banks or wholesalers and that no bills or stock registers were maintained further weakened the Revenue's case.

Issue (d): Justification for penalty imposition under Section 112(b)

Given the lack of corroborative evidence and the appellant's denial, the Tribunal held that penalty could not be imposed solely on the basis of statements of persons involved in smuggling. The principle that penalty proceedings require a fair and reasonable basis supported by evidence was emphasized.

The Tribunal reasoned that the statements of the intercepted persons, who were themselves involved in the illegal activity, could not be the only basis for penalizing the appellant without independent evidence. The penalty under Section 112(b) is a punitive measure and cannot be imposed arbitrarily or without proof of involvement.

3. SIGNIFICANT HOLDINGS

The Tribunal held:

"Merely on the basis of statements of the three apprehended persons who were involved in the activity of smuggling of gold, penalty cannot be imposed on the appellant."

The core principle established is that in penalty proceedings under the Customs Act, 1962, especially under Section 112(b), the Revenue must produce evidence beyond uncorroborated statements of co-accused or intercepted persons to establish involvement of the appellant.

The Tribunal concluded that the appellant's categorical denial, absence of any corroborative evidence, and the sole reliance on statements of the intercepted persons were insufficient to sustain the penalty. Therefore, the penalty of Rs.30,00,000/- imposed on the appellant was set aside.

Final determinations:

(i) The appellant was not proved to be involved in smuggling of gold;

(ii) Statements of the intercepted persons alone cannot form the basis for penalty imposition;

(iii) Penalty imposed under Section 112(b) of the Customs Act, 1962 on the appellant was unjustified and set aside;

(iv) The appeal was allowed with consequential relief.

1. Whether the jurisdiction under section 28AAA of the Customs Act could be invoked without the Directorate General of Foreign Trade (DGFT) having initiated or completed cancellation proceedings of the export incentive instrument (Focus Market Scheme scrips).

2. Whether the statement made by the freight forwarder's proprietor under section 108 of the Customs Act could be admitted as evidence under section 138B of the Customs Act.

3. Whether the appellant, being an exporter selling goods on FOB terms, could be held responsible for unauthorized changes in the country of destination made by the freight forwarder after issuance of Let Export Order.

4. Whether penalties under sections 114(iii) and 114AA of the Customs Act could be imposed on the appellant and its partner based on the alleged fraudulent diversion of exports.

Issue 1: Jurisdiction under Section 28AAA of the Customs Act without DGFT cancellation of instrument

The relevant legal framework includes section 28AAA of the Customs Act, which provides for recovery of duties in cases where export incentive instruments such as duty credit scrips are obtained by collusion, willful misstatement, or suppression of facts. The Foreign Trade (Development and Regulation) Act (FTDR Act) and the Foreign Trade Policy (FTP) vest the DGFT with exclusive authority to issue, suspend, or cancel such instruments.

The Court relied heavily on the Delhi High Court's decision which held that customs authorities cannot question the validity of an export incentive instrument or deny benefits under the scheme unless the DGFT, as the competent authority under the FTDR Act, has adjudicated and cancelled the instrument. The judgment emphasized that section 28AAA actions must be preceded by DGFT's cancellation or at least initiation of cancellation proceedings. This interpretation avoids conflicting parallel authorities and preserves the primacy of DGFT in matters related to export incentives.

The Court also referred to a Central Board of Indirect Taxes and Customs (CBIC) Technical Reference Unit (TRU) letter, which advised that demands under section 28AAA should be issued only after DGFT initiates cancellation proceedings.

Applying this legal framework, the Court found that since DGFT had neither cancelled nor initiated proceedings to cancel the appellant's Focus Market Scheme scrips, the invocation of section 28AAA by the customs authorities was without jurisdiction. The impugned order demanding recovery of the scrip amount was therefore invalid.

Issue 2: Admissibility of statement under section 108 of the Customs Act as evidence under section 138B

Section 108 of the Customs Act empowers customs officers to record statements during inquiries. Section 138B governs the admissibility of such statements in adjudication or court proceedings. It requires that the person making the statement be examined as a witness before the adjudicating authority, who must form an opinion that the statement should be admitted in the interests of justice. The person against whom the statement is used must be given an opportunity for cross-examination.

The Tribunal's prior ruling was cited, which clarified that failure to comply with this procedure renders the statements inadmissible as evidence. The rationale is to prevent coerced or compelled statements from being used unfairly.

In the present case, the statement of the freight forwarder's proprietor, implicating the appellant's partner in unauthorized amendments to shipping bills, was recorded under section 108 but was not followed by examination or opportunity for cross-examination before the adjudicating authority. Consequently, the Court held that this statement could not be relied upon as evidence.

Issue 3: Liability of the exporter on FOB basis for unauthorized change in country of destination

The appellant contended that since the contracts with overseas buyers were on FOB terms, title and control over the goods passed to the buyer once the Let Export Order was issued and goods were handed over to the freight forwarder or shipping line. Therefore, any changes made by the freight forwarder to the country of destination after that point could not be attributed to the appellant.

The Court acknowledged that under FOB terms, the exporter's title passes to the buyer at the port of shipment and the exporter loses control thereafter. However, the Court emphasized that under the Focus Market Scheme, the exporter alone is entitled to the scrip benefits, which are conditional upon the goods actually reaching the designated Focus Market.

The Handbook of Procedures requires the exporter to produce proof of landing of goods in the Focus Market, such as import bills, delivery orders, arrival notices, or certified tracking reports. The Court noted that in this case, neither party produced evidence that the goods reached the declared Focus Market (Panama). The customs authorities also did not obtain relevant documents from DGFT to verify the actual destination or landing of goods.

Thus, while the exporter's lack of control after Let Export Order was recognized, the exporter's responsibility to ensure and prove that the goods reached the Focus Market was underscored. The impugned order did not address this crucial issue.

Issue 4: Imposition of penalties under sections 114(iii) and 114AA of the Customs Act

Section 114(iii) prescribes penalties for acts or omissions that render goods liable for confiscation under section 113. Section 114AA penalizes knowingly making or using false or fraudulent particulars in customs transactions.

The Additional Commissioner imposed penalties on the appellant and its partner based on the finding that unauthorized amendments to shipping bills were made on instructions from the appellant's partner, constituting fraudulent diversion of exports and rendering the goods liable for confiscation.

However, since the statement implicating the appellant's partner was inadmissible, the foundation for these penalties collapsed. Without admissible evidence of fraudulent intent or acts, penalties under sections 114(iii) and 114AA could not be sustained.

Additionally, the appellant's argument that penalties cannot be imposed simultaneously on a partnership firm and its partners was rejected. The Court confirmed that partnership firms and partners are independent legal entities and can be penalized separately.

Competing Arguments and Court's Treatment

The appellant argued lack of jurisdiction under section 28AAA without DGFT cancellation, denial of involvement in destination change, inadmissibility of the freight forwarder's statement, and invalidity of penalties.

The department contended that DGFT was in process of cancellation, that section 28AAA applied even without cancellation if fraud was established, and relied on the freight forwarder's statement to prove fraudulent diversion.

The Court rejected the department's jurisdictional argument based on authoritative judicial precedent and statutory interpretation, and held the statement inadmissible due to procedural non-compliance. The Court partially accepted the appellant's FOB argument but emphasized the exporter's obligation to ensure goods reach the Focus Market to claim benefits.

Conclusions

The Court concluded that:

- The customs authorities lacked jurisdiction to invoke section 28AAA without DGFT cancellation or initiation of cancellation proceedings of the export incentive instrument.

- The statement recorded under section 108 of the Customs Act without examination and admission as evidence under section 138B was inadmissible and could not support findings of fraud or imposition of penalties.

- The exporter's responsibility under the Focus Market Scheme to ensure and prove actual export to the designated market remains paramount.

- Penalties under sections 114(iii) and 114AA could not be imposed without admissible evidence of fraudulent acts.

- Penalties on both the partnership firm and its partner are legally sustainable as they are separate legal entities.

Accordingly, the Court set aside the impugned order of the Commissioner (Appeals) and allowed the appeals.

Significant holdings and principles established:

"It would be wholly impermissible for the customs authorities to either question or go behind an instrument issued under the FTDR in law."

"Section 28AAA would thus have to be interpreted as contemplating a prior determination on the issue of collusion, wilful misstatement or suppression of facts tainting an instrument issued under the FTDR Act before action relating to recovery of duty could be possibly initiated."

"The statement of Imran Mirza made under section 108 of the Customs Act would not be relevant" due to non-compliance with section 138B procedural safeguards.

"The exporter will be entitled to these scrips if and only if the goods reach the destination market and not otherwise."

"The partnership firm and its partners are independent legal identities and can be penalised simultaneously."

The core legal questions considered by the Tribunal are:

- Whether penalty under section 114(iii) of the Customs Act, 1962 can be imposed on the appellant freight forwarder for allegedly assisting and conniving in the diversion of export goods to a port different from that declared in the shipping bills.

- Whether the appellant's act or omission rendered the goods liable to confiscation under section 113 of the Customs Act, thereby triggering penalty liability under section 114(iii).

- The validity of the findings regarding diversion of goods from the declared "Port of Discharge" (Panama) to Jebel Ali, a non-notified country under the Focus Market Scheme (FMS).

- The effect of the appellate order setting aside confiscation of goods on the imposition of penalty under section 114(iii).

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether penalty under section 114(iii) of the Customs Act can be imposed on the appellant for alleged diversion of export goods.

Relevant legal framework and precedents: Section 114(iii) of the Customs Act penalizes any person who does or omits to do any act which renders goods liable to confiscation under section 113. Section 113 lists various grounds for confiscation, including fraudulent export or diversion of goods. The penalty under section 114(iii) can be imposed up to the value of the goods.

Court's interpretation and reasoning: The Commissioner found that the appellant, an intermediate freight forwarding agency, had assisted and connived with the exporter and other freight forwarders in diverting containers to Jebel Ali instead of Panama, the declared port of discharge. This diversion was held to be a willful act aimed at fraudulently availing benefits under the Focus Market Scheme (FMS), which applies only to designated countries like Panama.

Key evidence and findings: Statements recorded under section 108 of the Customs Act from various parties including the proprietor of Concorde Shipping, the Deputy Manager of Safewater Lines, and the Assistant Manager of Evergreen Shipping Agency admitted that the container's destination was changed from Panama to Jebel Ali on instructions from the exporter and freight forwarders. The Export General Manifest filed mentioned Panama as the port of discharge, but the container was actually discharged at Jebel Ali. The appellant admitted instructing Evergreen Shipping Agency to discharge the container at Jebel Ali.

Application of law to facts: The Tribunal noted that the appellant's act of instructing the shipping line to discharge the container at a different port than declared in the shipping bills constituted an act rendering the goods liable to confiscation under section 113. Hence, prima facie, penalty under section 114(iii) was justified.

Treatment of competing arguments: The appellant contended that it was acting on instructions received from another freight forwarder (Concorde Shipping) and did not raise or issue any export documents. However, the Commissioner rejected this plea, holding that the appellant cannot absolve itself of responsibility merely because it did not issue documents, as it actively facilitated the diversion.

Conclusion: The Commissioner's imposition of penalty under section 114(iii) was based on the finding that the appellant had assisted in the diversion, which rendered goods liable to confiscation.

Issue 2: Whether the goods were liable to confiscation under section 113 of the Customs Act, and the impact of the appellate order setting aside confiscation on penalty liability.

Relevant legal framework and precedents: Section 113 of the Customs Act provides for confiscation of goods in cases of fraudulent export or misdeclaration, including diversion of goods to a place other than declared in shipping documents. Confiscation is a precondition for imposing penalty under section 114(iii).

Court's interpretation and reasoning: The Commissioner had initially found the goods liable for confiscation under sections 113(d), (g), and (i) due to diversion from Panama to Jebel Ali. However, a separate Customs Appeal filed by the exporter (Colour Cottex) resulted in the setting aside of confiscation of the goods under section 113.

Key evidence and findings: The Tribunal noted that the confiscation order was set aside by the appellate authority in a related appeal. Since penalty under section 114(iii) depends on the goods being liable to confiscation under section 113, the setting aside of confiscation negates the basis for penalty.

Application of law to facts: The Tribunal held that once confiscation is set aside, penalty under section 114(iii) cannot be sustained against any party, including the appellant freight forwarder.

Treatment of competing arguments: The department argued that the appellant's acts independently warranted penalty. The Tribunal rejected this, emphasizing the statutory link between confiscation and penalty under section 114(iii).

Conclusion: The penalty imposed on the appellant was untenable in the absence of confiscation, leading to the setting aside of the penalty order.

3. SIGNIFICANT HOLDINGS

- "M/s. Safewater Lines India Pvt. Ltd. (Intermediate Freight Forwarding Agency) cannot absolve itself of responsibility on the plea that they had not raised or issued any document. In their reply dated 23.1.2019, they have mentioned that they had instructed M/s. Evergreen Shipping Agency India Pvt. Ltd. to discharge the Container stuffed with the export goods covered under above said 5 Shipping Bills, at Jebel Ali, United Arab Emirates despite being cognisant of the fact that those Shipping Bills were filed for export of the goods to Colon Free Zone, Panama."

- "I therefore find that the above Noticees had assisted, facilitated and connived with Shri Imran Mirza, Proprietor of M/s. Concorde Shipping & Logistics India (Freight Forwarding Agency) and M/s. Colour Cottex Pvt. Ltd. (Exporter) in diverting the above said Container stuffed with the export goods covered under said 5 Shipping Bills to Jebel Ali, United Arab Emirates, instead of Colon Free Zone, Panama, as declared before the Customs in those 5 Shipping Bills and hence I hold that they are liable to penal action under Section 114(iii) of the Customs Act, 1962."

- The Tribunal emphasized that penalty under section 114(iii) is contingent upon the goods being liable to confiscation under section 113. Since confiscation was set aside in a related appeal, penalty cannot be imposed: "The confiscation of goods has been set aside by order of date in Customs Appeal No. 55760 of 2023 filed by Color Cottex. Consequently, penalty under section 114(iii) of the Customs Act cannot be levied upon the appellant."

- Final determination: The imposition of penalty under section 114(iii) on the appellant freight forwarder is set aside, and the appeal is allowed.

1. Whether the statements recorded under section 108 of the Customs Act, 1962, can be relied upon as evidence for imposing penalties under sections 114(iii) and 114AA of the Customs Act without following the procedure prescribed under section 138B of the Customs Act.

2. Whether the appellant, a director of a freight forwarding company, was liable for penalties for assisting exporters in fraudulently amending shipping bills to divert goods to unauthorized destinations and claim undue benefits under the Focus Market Scheme.

3. Whether the penalties imposed on the appellant under sections 114(iii) and 114AA of the Customs Act were justified on the facts and evidence available.

Issue-wise Detailed Analysis

Issue 1: Admissibility and Reliance on Statements Recorded under Section 108 of the Customs Act

Relevant Legal Framework and Precedents: Section 108 of the Customs Act empowers officers to record statements of persons during inquiry or investigation. Section 138B of the Customs Act prescribes the conditions under which such statements can be admitted as evidence in adjudication proceedings. Specifically, section 138B mandates that statements recorded during inquiry are relevant only if the person who made the statement is examined as a witness before the adjudicating authority and the adjudicating authority forms an opinion that the statement should be admitted in the interests of justice. Additionally, the person must be given an opportunity for cross-examination.

The Tribunal's decision in M/s Surya Wires Pvt. Ltd. was extensively relied upon, which analyzed the interplay between sections 108 and 138B of the Customs Act and analogous provisions under the Central Excise Act. The Tribunal held that statements recorded during inquiry cannot be relied upon as evidence unless the procedural safeguards under section 138B are complied with. The rationale is to prevent statements being recorded under coercion or compulsion and to ensure fairness by allowing cross-examination.

Court's Interpretation and Reasoning: The Court examined the impugned order and found that the Commissioner (Appeals) relied solely on the statements recorded under section 108 without ensuring compliance with section 138B. The appellant's and exporters' statements were not subjected to examination as witnesses before the adjudicating authority, nor was there an opportunity for cross-examination. Hence, the reliance on these statements violated the mandatory procedural safeguards.

Application of Law to Facts: Since the procedural requirements of section 138B were not followed, the statements under section 108 could not be admitted as evidence. Consequently, the factual foundation for the penalties imposed on the appellant was undermined.

Treatment of Competing Arguments: The appellant contended that the statements were recorded under coercion and should not be relied upon. The Court rejected this plea on the ground that no complaint was made at the relevant time, and the statements remained un-retracted before the proper authority. However, the Court emphasized that irrespective of retraction or coercion claims, the statutory procedure under section 138B must be followed for admissibility.

Conclusion: The Court concluded that the statements recorded under section 108 without compliance with section 138B could not be relied upon for imposing penalties.

Issue 2: Liability of the Appellant for Fraudulent Amendment of Shipping Bills and Diversion of Goods

Relevant Legal Framework: Sections 113 and 114 of the Customs Act deal with confiscation of goods and imposition of penalties for violations. Section 114(iii) penalizes persons who assist in fraudulent acts relating to customs procedures. Section 114AA penalizes persons who forge or fraudulently endorse documents related to customs.

Court's Interpretation and Reasoning: The Additional Commissioner of Customs found that the appellant had actively assisted exporters in fraudulently amending the TR-1 and TR-2 copies of shipping bills to change the port of discharge and country of destination from Mogadishu (Somalia) to Jebel Ali (UAE), thereby enabling exporters to claim undue benefits under the Focus Market Scheme. The amendments were made in the appellant's handwriting, and he had endorsed these amendments with forged signatures and stamps purporting to be of the Customs Superintendent, without due authentication.

The Commissioner (Appeals) upheld these findings, relying heavily on the statements recorded under section 108, which the appellant had not retracted. The appellant admitted involvement in these amendments in his statements. The Court noted that these acts rendered the goods liable for confiscation under section 113, and the appellant liable for penalties under sections 114(iii) and 114AA.

Key Evidence and Findings: The investigation revealed fraudulent amendments to shipping bills, corroborated by the appellant's own statements and those of the exporters. The unauthorized change of destination and port was done without Customs Superintendent's authentication. The appellant's admission under section 108 was a critical piece of evidence.

Application of Law to Facts: The fraudulent amendments and the appellant's active role in them constituted violations attracting penalties under the Customs Act. However, as discussed under Issue 1, the reliance on these statements was procedurally flawed.

Treatment of Competing Arguments: The appellant denied the allegations but did not retract his statements recorded under section 108. The plea of coercion was rejected. The department argued that the appellant's involvement was established by documentary and testimonial evidence.

Conclusion: While the facts indicated the appellant's involvement in fraudulent amendments, the procedural infirmity in admitting evidence under section 108 without compliance with section 138B vitiated the imposition of penalties.

Issue 3: Validity of Penalties Imposed under Sections 114(iii) and 114AA of the Customs Act

Court's Reasoning: The penalties were imposed based on the appellant's involvement in fraudulent amendments and endorsement of forged documents. The Commissioner (Appeals) upheld the penalties, finding the appellant actively concerned with the goods and the fraudulent acts.

However, the Court found that since the statements relied upon to establish these facts were inadmissible due to non-compliance with section 138B, the penalties could not be sustained.

Conclusion: The penalties imposed under sections 114(iii) and 114AA were set aside as the foundational evidence was improperly admitted.

Significant Holdings

"The statements recorded during inquiry/ investigation by officers has every chance of being recorded under coercion or compulsion and it is in order to neutralize this possibility that statements of the witnesses have to be recorded before the adjudicating authority, after which such statements can be admitted in evidence."

"A person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made."

"Failure to comply with the procedure under section 138B of the Customs Act means that no reliance can be placed on the statements recorded under section 108 of the Customs Act."

"The appellant had assisted and connived with the exporters for claiming inadmissible benefit of incentives scheme and by the above said acts of omission and commission, he was actively concerned with the goods pertaining to the amended shipping bills. Therefore, the Adjudicating authority has rightly penalised the Appellant under Section 114(iii) of the Act. The Appellant had also endorsed the manual amendments in those fraudulently amended shipping bills by forging the signatures of the Customs Superintendent and by appending their own stamp in the name of Customs Superintendent of ICD, TKD Delhi as if the said amendments had the approval of the Customs Authorities, Thus, I also hold that the Appellant is liable to penal action under Section 114AA of the Act as well."

However, the Court ultimately held that these findings could not be sustained due to procedural non-compliance regarding evidence admissibility.

Final determinations:

- The statements recorded under section 108 of the Customs Act without compliance with section 138B cannot be relied upon as evidence.

- The penalties imposed under sections 114(iii) and 114AA of the Customs Act on the appellant based solely on such inadmissible statements are set aside.

- The impugned order dismissing the appellant's appeals is set aside, and the appeals are allowed.

(i) Whether the jurisdiction under section 28AAA of the Customs Act could be invoked without the Directorate General of Foreign Trade (DGFT) initiating or completing cancellation proceedings of the relevant export license or instrument;

(ii) Whether the statement of Imran Mirza, recorded under section 108 of the Customs Act, could be admitted as evidence under section 138B of the Customs Act;

(iii) Whether the appellant, as an exporter selling goods on FOB basis, could be held responsible for any change in the country of export destination effected by the freight forwarder or buyer;

(iv) Whether penalties under sections 114(iii) and 114AA of the Customs Act were rightly imposed on the appellant;

(v) The applicability of confiscation provisions under section 113 of the Customs Act in the facts of the case.

Issue-wise detailed analysis:

1. Jurisdiction under section 28AAA of the Customs Act without DGFT cancellation

The legal framework involves section 28AAA of the Customs Act, inserted by the Finance Act, 2012, which provides for recovery of duties where an instrument such as a license or scrip issued under the Foreign Trade (Development and Regulation) Act (FTDR Act) is obtained by collusion, willful misstatement, or suppression of facts. The DGFT is the competent authority empowered to issue, suspend, or cancel such instruments under the FTDR Act and its Rules.

The Tribunal relied heavily on a recent decision of the Delhi High Court, which held that the customs authorities do not have the jurisdiction to question the validity of an instrument issued under the FTDR Act absent a prior adjudication or cancellation by the DGFT. The Court emphasized the primacy of DGFT in matters relating to export licenses and benefits, noting that the Foreign Trade Policy (FTP) and FTDR Rules confer exclusive authority on DGFT to interpret, suspend, or cancel such instruments. The relevant portion of the judgment was quoted extensively, stating that section 28AAA contemplates a prior determination by DGFT before customs can initiate recovery actions.

Additionally, a Trade and Regulatory Unit (TRU) circular dated 01.06.2012 was referenced, which advises customs formations to issue demands under section 28AAA only after DGFT initiates cancellation proceedings and the instrument is cancelled.

In the present case, the DGFT had neither cancelled the instrument nor initiated cancellation proceedings at the time of the impugned order. Therefore, the Tribunal concluded that the order invoking section 28AAA was without jurisdiction.

2. Admissibility of statement under section 108 of the Customs Act

Section 108 of the Customs Act empowers officers to record statements during inquiry or investigation. Section 138B of the Customs Act governs the admissibility of such statements as evidence. The law requires that statements recorded under section 108 can be admitted as evidence only if the person who made the statement is examined as a witness before the adjudicating authority, and the authority forms an opinion that the statement should be admitted in the interests of justice, after which the opposing party must be given an opportunity for cross-examination.

The Tribunal referred to its own precedent which examined analogous provisions under the Central Excise Act and Customs Act, emphasizing that failure to comply with these procedural safeguards renders the statements inadmissible. This is to prevent coercion or compulsion in recorded statements and to ensure fairness in adjudication.

In the instant case, the statement of Imran Mirza, the freight forwarder proprietor, was recorded under section 108 but he was neither examined as a witness before the adjudicating authority nor was the statement formally admitted in evidence. Therefore, the Tribunal held that reliance on such statement was impermissible.

3. Responsibility of exporter on FOB exports for change in country of destination

The appellant sold goods on FOB (Free on Board) terms, whereby title and risk pass to the buyer upon issuance of the Let Export Order and loading of goods onto the vessel. The appellant contended that it had no control over the goods after this point and was unaware of any changes made by the freight forwarder or buyer regarding the final destination.

The Tribunal acknowledged that while title passes on FOB terms, the Focus Market Scheme (FMS) benefits are contingent on the goods reaching the specified Focus Market. The exporter is the sole beneficiary of the scrips and must provide proof of landing in the Focus Market as per paragraph 3.20.3 of the Handbook of Procedures, which includes documents such as import bills of entry, delivery orders, arrival notices, or certified tracking reports.

The Tribunal noted that neither the appellant nor the authorities produced evidence that the goods actually reached the Focus Market (Panama or Netherlands). The investigation did not clarify whether the goods were diverted or if fake documents were submitted. The impugned order failed to address this crucial aspect.

Thus, while the appellant's argument on FOB terms was partly accepted, the responsibility to ensure and prove that goods reached the destination market for claiming FMS benefits remained with the exporter.

4. Imposition of penalties under sections 114AA and 114(iii) of the Customs Act

Section 114AA penalizes knowingly or intentionally making or using any false document or material particular for customs purposes, with penalty up to five times the value of goods. Section 114(iii) penalizes acts or omissions rendering goods liable to confiscation under section 113.

The Principal Commissioner imposed penalties relying primarily on the statement of Imran Mirza, implicating the appellant in fraudulent amendments of shipping documents and forging signatures.

Given the inadmissibility of Imran Mirza's statement as evidence, the Tribunal held that penalties could not be sustained. The appellant's claim of bona fide export on FOB terms and lack of involvement in destination changes stood unrebutted by admissible evidence.

5. Confiscation of goods under section 113 of the Customs Act

The Principal Commissioner held the goods liable for confiscation under sections 113(d), (g), and (i) of the Customs Act on grounds of fraud and misdeclaration. However, the goods were already exported and not available for confiscation, so no redemption fine was imposed.

The confiscation finding was again based on the inadmissible statement of Imran Mirza. The Tribunal found no valid evidence to uphold confiscation and consequently set aside the confiscation order.

Treatment of competing arguments

The appellant argued procedural and jurisdictional errors, lack of evidence, and reliance on inadmissible statements. The department contended that DGFT was in the process of initiating cancellation, and that the customs authorities had jurisdiction under section 28AAA independent of DGFT cancellation. The department also argued that fraud vitiates everything, supporting the recovery and penalties.

The Tribunal rejected the department's contentions on jurisdiction and evidence admissibility, emphasizing the statutory scheme and procedural safeguards. It accepted the appellant's bona fide exporter status and absence of control post Let Export Order, but underscored the exporter's responsibility to ensure goods reach the Focus Market for claiming benefits.

Significant holdings and core principles established:

"It would be wholly impermissible for the customs authorities to either doubt the validity of an instrument issued under the FTDR Act or go behind benefits availed pursuant thereto absent any adjudication having been undertaken by the DGFT."

"Section 28AAA would thus have to be interpreted as contemplating a prior determination on the issue of collusion, wilful misstatement or suppression of facts tainting an instrument issued under the FTDR Act before action relating to recovery of duty could be possibly initiated."

"Statements recorded under section 108 of the Customs Act shall be relevant for proving truth of facts only when the person making the statement is examined as a witness before the adjudicating authority, and the statement is admitted in evidence after giving opportunity for cross-examination."

"The exporter selling goods on FOB terms transfers title and control upon issuance of Let Export Order, but for claiming Focus Market Scheme benefits, the exporter remains responsible to ensure and prove that goods reach the designated Focus Market."

"Penalties under sections 114AA and 114(iii) of the Customs Act cannot be imposed based solely on inadmissible statements lacking corroboration."

The Tribunal set aside the impugned order dated 29.05.2019 in entirety, holding that the Principal Commissioner lacked jurisdiction to invoke section 28AAA without DGFT cancellation, that the evidence relied upon was inadmissible, and that penalties and confiscation could not be sustained on the record before it.

(1) Whether jurisdiction under section 28AAA of the Customs Act could be invoked without the Directorate General of Foreign Trade (DGFT) having initiated or completed cancellation proceedings of the export benefit instrument (Focus Market Scheme scrip) issued under the Foreign Trade (Development and Regulation) Act (FTDR Act);

(2) Whether the statement of the proprietor of the Freight Forwarder, recorded under section 108 of the Customs Act, could be admitted as evidence under section 138B of the Customs Act;

(3) Whether the appellant, as an exporter selling goods on FOB terms, is liable for confiscation and penalties under sections 113, 114AA, and 114(iii) of the Customs Act, in light of the alleged diversion of export goods to a destination other than that declared;

(4) The applicability and scope of penalties under sections 114AA and 114(iii) of the Customs Act in the circumstances of this case.

Issue 1: Jurisdiction under Section 28AAA of the Customs Act without DGFT Cancellation

The relevant legal framework includes section 28AAA of the Customs Act, which empowers recovery of duties where an instrument issued under the FTDR Act is found to have been obtained by collusion, willful misstatement, or suppression of facts. The Foreign Trade Policy (FTP) and FTDR Rules vest exclusive authority in the DGFT to interpret policy and to suspend or cancel export benefit instruments. Paragraph 2.57 of the FTP explicitly states that DGFT's decision on policy interpretation is final and binding.

The Tribunal relied heavily on a recent Delhi High Court decision which held that the Customs authorities lack jurisdiction to question the validity of an instrument issued under the FTDR Act absent a prior adjudication or cancellation by the DGFT. The Court emphasized that section 28AAA must be read harmoniously with the FTDR Act and Rules, requiring a prior determination by the DGFT before Customs can initiate recovery proceedings. This prevents a duality of authority and ensures that the DGFT remains the sole competent authority to adjudicate on the validity of export benefit instruments.

Additionally, a TRU letter dated 01.06.2012 was cited, which advises Customs formations to issue demands only after DGFT initiates cancellation proceedings and the instrument is cancelled.

Applying this framework, the Tribunal found that since DGFT had neither initiated nor completed cancellation proceedings against the appellant's instrument, the Commissioner's invocation of section 28AAA was without jurisdiction.

Issue 2: Admissibility of Statement under Section 108 of the Customs Act

The statement of Imran Mirza, proprietor of the Freight Forwarder, was recorded under section 108 during investigation and implicated the appellant in fraudulent amendments to shipping bills. The question was whether this statement could be admitted as evidence under section 138B of the Customs Act.

Section 138B requires that statements recorded under section 108 are relevant for proving facts only if the person making the statement is examined as a witness before the adjudicating authority, and the authority forms an opinion to admit the statement in the interests of justice, with an opportunity for cross-examination.

The Tribunal referred to its own precedent and various High Court decisions which consistently hold that failure to comply with this procedure renders such statements inadmissible. The rationale is to prevent coercion or compulsion during inquiry and to ensure fairness by allowing cross-examination.

The Tribunal found that Imran Mirza was neither examined as a witness before the adjudicating authority nor was his statement admitted in evidence following the prescribed procedure. Consequently, reliance on his statement was impermissible.

Issue 3: Liability of the Exporter on FOB Terms for Diversion of Goods and Confiscation

The appellant contended that since the sale was on FOB terms, title to the goods passed to the buyer upon issuance of the Let Export Order, and the exporter had no control over the goods thereafter. The freight forwarder and shipping line were responsible for the actual shipment and destination. Therefore, any diversion of goods or amendment of shipping documents could not be attributed to the appellant.

The Tribunal acknowledged that under FOB contracts, title passes to the buyer at the port and the exporter's control over goods ceases post Let Export Order. This is supported by a CBIC Circular dated 28.02.2015, which states that after Let Export Order, responsibility for shipment lies with the shipping line.

However, the Tribunal emphasized that under the Focus Market Scheme, the exporter is the sole beneficiary of scrips only if the goods physically reach the designated focus market. The exporter must provide documentary proof of landing in the focus market, such as import bills, delivery orders, arrival notices, or certified tracking reports, as mandated by paragraph 3.20.3 of the Handbook of Procedures.

In this case, neither the appellant nor the department produced such proof to establish that goods reached the focus market (Panama). The investigation did not clarify whether the goods were diverted or whether fake proof was submitted. The impugned order failed to address this critical issue.

Thus, while the appellant's position on FOB and title passing was accepted, the responsibility to ensure goods reached the focus market and to produce proof remained with the appellant.

Issue 4: Imposition of Penalties under Sections 114AA and 114(iii) of the Customs Act

Section 114AA penalizes knowingly or intentionally making or using false particulars in customs transactions, with a penalty up to five times the value of goods. Section 114(iii) penalizes acts or omissions rendering goods liable to confiscation, with a penalty up to the value of the goods.

The Commissioner imposed penalties relying on the statement of Imran Mirza that the appellant directed amendments to shipping bills. Given the inadmissibility of this statement as evidence, the Tribunal held that the penalties could not be sustained.

Moreover, since confiscation under section 113 was based on the same inadmissible statement, confiscation itself was set aside, which further negated the basis for penalties under section 114(iii).

Conclusions and Significant Holdings

The Tribunal held that:

"The impugned order is without jurisdiction as the DGFT has neither cancelled the instrument nor even initiated proceedings for cancellation of the instrument."

Regarding evidentiary issues, the Tribunal stated:

"A person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain."

On the issue of FOB contracts and exporter's liability, the Tribunal observed:

"Insofar as the transaction between the exporter and the overseas buyer is concerned, if the goods are sold on FOB basis, the title shifts to the buyer. It is also true that once the Let Export Order is issued, the exporter may not have control over the goods."

However, it emphasized the exporter's continuing responsibility to ensure goods reach the Focus Market and to provide proof thereof under the scheme.

Consequently, the Tribunal set aside the order of confiscation, recovery, and penalties, allowing the appeal.

1. Whether the appellants failed to advise their client exporters to comply with customs laws and report non-compliance as required under Regulation 10(d).

2. Whether the appellants failed to exercise due diligence in ascertaining the correctness of information imparted to their clients regarding export declarations, especially concerning valuation, under Regulation 10(e).

3. Whether the appellants failed to verify the correctness of the Importer Exporter Code (IEC), Goods and Services Tax Identification Number (GSTIN), identity, and functioning of their client exporters at the declared address as mandated under Regulation 10(n).

4. Whether the procedural requirements under Regulation 17 of CBLR, 2018, governing inquiry and adjudication for revocation of CB licenses and imposition of penalties, were duly followed.

5. Whether the evidence and investigation findings sufficiently established the appellants' liability for facilitating fraudulent claims of IGST refunds through overvaluation of export goods.

Issue-wise Detailed Analysis:

1. Alleged Violation of Regulation 10(d): Duty to Advise Client and Report Non-Compliance

Regulation 10(d) requires a Customs Broker to advise clients to comply with the provisions of the Customs Act and to report any non-compliance to the Deputy Commissioner or Assistant Commissioner of Customs. The Principal Commissioner found that the appellants did not advise the exporter regarding overvaluation of goods and failed to report the same to Customs authorities.

The appellants contended that they filed export declarations based on documents and information provided by the exporter and had no knowledge of any overvaluation or fraudulent intent. They further argued that the Customs authorities themselves had accepted previous shipping bills with similar valuations, and thus, the appellants could not have been expected to detect the alleged fraud.

The Tribunal noted that the overvaluation was detected only after a detailed investigation by Customs authorities, including market surveys and physical verification. Since the Customs authorities had earlier accepted the export declarations, the appellants could not be reasonably expected to have known about the overvaluation at the time of filing. The Tribunal emphasized that while a CB is expected to be a prudent professional, it is not their role to detect sophisticated frauds or misdeclarations made by exporters.

Consequently, the Tribunal held that the finding of violation of Regulation 10(d) was not sustainable as the appellants had no direct knowledge or reasonable grounds to suspect the overvaluation or fraudulent claims.

2. Alleged Violation of Regulation 10(e): Exercise of Due Diligence in Information Provided to Clients

Regulation 10(e) mandates that a Customs Broker exercise due diligence to ensure the correctness of any information imparted to clients related to clearance of cargo. The Principal Commissioner concluded that the appellants failed to identify the overvaluation and did not advise the exporter accordingly.

The appellants argued that they did not provide any valuation information to the exporter; rather, the exporter furnished the information. They further submitted that no market inquiry or valuation determination was conducted contemporaneously, and the Customs authorities had allowed the exports previously.

The Tribunal referred to precedents including the judgment of the High Court of Delhi which clarified that Customs Brokers are not officers of Customs and do not possess expertise to identify misclassification or valuation issues. The Tribunal found no documentary evidence or material to prove that the appellants failed to exercise due diligence in imparting correct information, especially since the information originated from the exporter.

Thus, the Tribunal concluded that the charge under Regulation 10(e) was not supported by evidence and was unsustainable.

3. Alleged Violation of Regulation 10(n): Verification of Client Identity and Address (KYC)

Regulation 10(n) requires Customs Brokers to verify the correctness of IEC, GSTIN, identity of the client, and the functioning of the client at the declared address using reliable and authentic documents.

The Principal Commissioner found that the appellants had never met the exporter and were not diligent in conducting KYC verification, especially since the exporter was not traceable at the declared address during Customs verification.

The appellants demonstrated that they had obtained and submitted KYC documents including an authorization letter, IEC certificate from DGFT, GST registration certificate, and bank account verification letter. The Tribunal relied on CBIC Circular No.9/2010-Customs dated 08.04.2010, which prescribes that verification of any two specified documents suffices for compliance with KYC norms.

The Tribunal further cited a recent Tribunal decision holding that mere inability to physically locate the exporter at the declared address, especially when the exporter admitted to changing addresses without informing DGFT, does not amount to failure of KYC verification by the CB. The High Court of Delhi's ruling was also noted, which held that Customs Brokers are processing agents and are not expected to verify genuineness of transactions or independently verify IE Codes beyond prescribed documents.

Accordingly, the Tribunal found no legal basis to uphold the violation of Regulation 10(n).

4. Compliance with Procedural Requirements under Regulation 17 of CBLR, 2018

Regulation 17 prescribes the procedure for initiating inquiry, including issuance of show cause notice, receipt of written reply, appointment of inquiry officer, opportunity for cross-examination, preparation of inquiry report, submission of representation by CB, and final adjudication with opportunity of personal hearing.

The Tribunal examined the procedural chronology and found that all stages were followed within prescribed timelines: the offence report was received, show cause notice issued within 90 days, inquiry report submitted within 90 days of notice, and final order passed within 90 days of inquiry report. There was no procedural lapse or delay.

5. Sufficiency of Evidence to Establish Appellants' Liability

The investigation revealed that the exporter had filed shipping bills with inflated values to claim higher IGST refunds, which were ineligible. However, the exporter was not traceable, and the appellants CB had no prior knowledge or involvement in the alleged fraudulent overvaluation.

The Tribunal noted that the Customs authorities had already adjudicated the exporter's liability separately through a show cause notice dated 01.02.2023. No direct evidence was placed on record implicating the appellants CB in the fraudulent scheme.

Given the absence of evidence showing that the appellants failed in their statutory duties or knowingly facilitated the fraud, the Tribunal found no grounds to sustain the revocation of the CB license or imposition of penalty.

Significant Holdings:

"The CB is bound to know about the prevailing practice of over valuation of goods for export to take undue benefit of various export promotion schemes and IGST refund... From the above facts, it is clear that the appellants CB did not take necessary action to verify the fact that the goods were over-priced but the CB neither advised the exporter regarding over-valuation nor informed customs authority about the same as mandated in regulation 10(d) of CBLR, 2018." - This reasoning by the adjudicating authority was rejected by the Tribunal as unsustainable.

"The CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect to clearance of goods through customs house... It would be far too onerous to expect the CHA to inquire into and verify the genuineness of the IE Code given to it by a client for each import/export transaction." - The Tribunal relied on this principle from the High Court of Delhi to reject the charge under Regulation 10(n).

"The basic requirement of Regulation 10(n) is that the Customs Broker should verify the identity of the client and functioning of the client at the declared address by using, reliable, independent, authentic documents... any of the two listed documents in the Annexure would suffice." - The Tribunal applied this principle to hold that the appellants complied with KYC norms.

Core principles established include the limited scope of a Customs Broker's duties under CBLR, 2018, emphasizing that they are not expected to act as Customs officers or investigators but must exercise reasonable prudence and due diligence based on information provided by clients.

Final determinations on each issue were:

• No violation of Regulation 10(d) as appellants had no knowledge or reasonable grounds to suspect overvaluation or fraudulent claims.
• No violation of Regulation 10(e) since appellants did not impart incorrect information and exercised due diligence within their role.
• No violation of Regulation 10(n) as appellants complied with prescribed KYC verification norms by obtaining and submitting requisite documents.
• Procedural requirements under Regulation 17 were duly followed.
• Insufficient evidence to sustain revocation of CB license, forfeiture of security deposit, or imposition of penalty.

Accordingly, the Tribunal set aside the impugned order dated 19.07.2024 and allowed the appeal in favor of the appellants.

The core legal questions considered by the Tribunal in this appeal revolve around:

(a) Whether the shares held in the name of a partnership firm, which is not a recognized member under the Companies Act, 2013, can be divided among the individual partners in their respective profit-sharing ratios;

(b) Whether the Tribunal is the appropriate forum to grant relief concerning the division of shares held by an erstwhile partnership firm in a company;

(c) Whether allegations of mismanagement and oppression under Sections 59, 241, 242, and 244 of the Companies Act, 2013, are substantiated to warrant intervention;

(d) The procedural issue of whether the parties can be directed to mediation to resolve the dispute and the terms under which such mediation should proceed, including cost-sharing and the preservation of rights to judicial remedies post-mediation.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Legality of Shareholding by a Partnership Firm and Division of Shares Among Partners

The legal framework under the Companies Act, 2013, explicitly prohibits a partnership firm from being a member or shareholder in a company. The Tribunal examined whether the shares held by the partnership firm could be treated as held by the individual partners in their respective profit-sharing ratios (40:30:30).

The Court noted that the shares have been held in the name of the partnership firm since 1985. The Appellant contended that the shares should be divided among the partners according to their agreed profit-sharing ratio. However, the Respondents argued that the concept of partnership is not applicable for the purpose of shareholding in a company and that the Appellant was attempting to use the partnership concept to settle personal disputes.

Relying on the provisions of the Companies Act and established legal principles, the Tribunal held that a partnership firm cannot be a shareholder in a company, and consequently, the relief seeking division of shares held by the partnership firm among individual partners does not lie before the Tribunal. The Tribunal emphasized that it is not the proper forum to grant relief relating to the division of shares of an erstwhile partnership firm.

The Tribunal's reasoning was grounded in the statutory prohibition and the procedural limitations of the forum. It rejected the Appellant's contention, finding the petition devoid of merit and substance on this point.

Issue (c): Allegations of Mismanagement and Oppression under Sections 59, 241, 242, and 244 of the Companies Act, 2013

The Appellant raised allegations of mismanagement and oppression concerning the affairs of the company. The Tribunal examined whether the facts and evidence presented substantiated these claims to warrant intervention.

The Tribunal's order indicates that the allegations were not sufficiently substantiated. The dismissal of the petition was premised on the lack of merit or substance in the claims raised. The Tribunal did not find any compelling evidence or legal basis to interfere with the company's affairs under the cited provisions.

Although the detailed evidentiary analysis is not exhaustively set out in the judgment, the Tribunal's conclusion reflects a considered evaluation of the submissions and materials before it.

Issue (d): Mediation as a Mechanism for Dispute Resolution and Related Procedural Matters

Upon hearing the appeal, the Tribunal encouraged the parties to explore mediation to amicably resolve the dispute. The Appellant submitted a memorandum proposing terms for mediation, including:

• Limiting mediation strictly to issues raised in the Company Petition and Appeal, excluding personal relationship matters;
• Completion of mediation within 2-3 months with a report to be submitted to the Tribunal;
• The cost of mediation to be borne by the 1st Respondent Company;
• Preservation of all contentions, facts, and legal questions for pursuit if mediation fails.

The Respondents objected to the cost-bearing clause, refusing to accept the 1st Respondent Company's liability for mediation costs. However, both parties agreed to share mediation costs equally (50% each).

The Tribunal also addressed the Appellant's reservation that if mediation failed, all legal contentions would remain open. The Court upheld this position, stating that parties' rights to judicial remedies cannot be curtailed by the mediation process. The Tribunal emphasized that mediation is a consensual process aimed at settlement but does not extinguish the right to seek judicial redress if the mediation outcome is unsatisfactory.

The Tribunal thus carved out a procedural framework for mediation, balancing the need for dispute resolution with preservation of parties' substantive rights. The appeal was closed subject to these terms, with the right to judicial remedy explicitly preserved.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning includes the following verbatim excerpts:

"As per the procedures and the norms of the Companies Act, a Partnership firm cannot be a member/shareholder in a company registered under the Companies Act."

"This Tribunal is not the proper forum to grant relief, relating to the division of shares of the erstwhile partnership firm. Therefore, this relief is hereby rejected."

"The present petition is devoid of any merit or substance. Hence, the same is liable to be dismissed."

"It will be open for either of the parties to the Appeal that in case if they are aggrieved by any of the observations or the decision itself, which is taken by the Mediator, their right to judicial remedies cannot be curtailed."

Core principles established by the Tribunal include:

• The statutory prohibition against partnership firms holding shares in companies under the Companies Act, 2013, precludes division of such shares among partners by the Tribunal;
• The Tribunal is not the appropriate forum to adjudicate disputes relating to shareholding by partnership firms;
• Allegations of mismanagement and oppression must be substantiated with credible evidence to warrant intervention under Sections 59, 241, 242, and 244;
• Mediation is a viable and encouraged mechanism for resolving company disputes, but mediation outcomes do not extinguish parties' rights to pursue judicial remedies;
• Costs of mediation should be borne equally by parties unless otherwise agreed.

Final determinations on each issue were:

• The petition for division of shares held by a partnership firm was dismissed as not maintainable;
• The allegations of mismanagement and oppression were found unsubstantiated and dismissed;
• The appeal was closed subject to parties engaging in mediation under agreed terms, including cost-sharing and preservation of judicial rights.

• Whether the order dated 02.09.2024 permits the sale of the Corporate Debtor as a going concern or merely the sale of the business of the Corporate Debtor as a going concern;
• The validity and binding effect of the resolution passed in the 10th Stakeholders Consultation Committee (SCC) meeting, particularly concerning the date of the meeting and its impact on the nature of the sale;
• The correctness of the Adjudicating Authority's rejection of the application seeking clarification/modification of the order dated 02.09.2024;
• The interplay between Regulation 32(e) and 32(f) of the IBBI (Liquidation Process) Regulations, 2016, regarding sale of the Corporate Debtor as a going concern;
• The scope of the Adjudicating Authority's inherent powers under Section 60(5) of the I&B Code to modify or clarify orders post liquidation closure application;
• The implications of the liquidator filing an application for closure of liquidation proceedings on the ability to entertain requests for modification of the sale description.

Issue-wise Detailed Analysis

1. Interpretation of the Order dated 02.09.2024: Sale of Corporate Debtor vs. Sale of Business as a Going Concern

The legal framework involves the provisions of the I&B Code, 2016, and the IBBI (Liquidation Process) Regulations, 2016, particularly Regulation 32 which governs the sale of assets during liquidation. Regulation 32(e) contemplates sale of the Corporate Debtor as a going concern, while Regulation 32(f) contemplates sale of the business of the Corporate Debtor as a going concern.

The Appellant contended that the order dated 02.09.2024 permitted only the sale of the Corporate Debtor as a going concern, but the actual resolution of the 10th SCC meeting authorized the sale of the business of the Corporate Debtor as a going concern. The Appellant sought clarification/modification to align the order with the SCC resolution.

The Adjudicating Authority had rejected this clarification application, holding that the sale of the Corporate Debtor as a going concern was completed, the sale certificate was issued, and there was no ambiguity requiring clarification. It further held that the request for conversion from Regulation 32(e) to 32(f) was an afterthought and that the SCC resolution did not bind the sale already concluded.

The Court observed a contradiction between the orders dated 16.04.2024 and 02.09.2024: the former allowed sale of business as a going concern under Regulation 32(f), while the latter ordered closure of liquidation proceedings post sale of Corporate Debtor as a going concern. The Court noted that the sale of the business of the Corporate Debtor as a going concern would not materially differ from sale of the Corporate Debtor itself, given the Corporate Debtor had only one business.

On this issue, the Court concluded that the order dated 02.09.2024 should be construed as permitting the sale of the business of the Corporate Debtor as a going concern in accordance with Regulation 32(f), thereby allowing the requested clarification.

2. Validity and Effect of the 10th Stakeholders Consultation Committee Meeting Resolution

The 10th SCC meeting resolution was central to the appeal as it purportedly authorized the change in the nature of sale. The certified minutes initially recorded the date as 18.03.2023, which the Appellant asserted was a typographical error, contending the correct date was 18.03.2024. This was supported by the chronology of prior SCC meetings and related documents, including a letter to the liquidator dated 16.02.2024 and the liquidator's signature dated 01.04.2024 on the resolution.

The Adjudicating Authority had cast doubt on the genuineness of the 10th SCC meeting due to the erroneous date and concluded that the SCC resolution was not binding on the sale already completed. The Court found this reasoning flawed, accepting the Appellant's explanation that the date was a typographical error and that the meeting was indeed held on 18.03.2024. The Court emphasized that the resolution of the SCC, as the representative body of stakeholders, should be given due weight and effect.

Thus, the Court held that the 10th SCC resolution was valid and binding for the purposes of clarifying the nature of the sale, and the Adjudicating Authority's doubt was misplaced.

3. Application of Regulation 32(e) vs. 32(f) of IBBI (Liquidation Process) Regulations, 2016

The distinction between Regulation 32(e) and 32(f) was pivotal. Regulation 32(e) contemplates sale of the Corporate Debtor as a going concern, whereas Regulation 32(f) contemplates sale of the business of the Corporate Debtor as a going concern. The Appellant argued that the sale was to be under Regulation 32(f), consistent with the SCC resolution and prior orders.

The Adjudicating Authority rejected this, holding that since the Corporate Debtor had only one business, the difference was immaterial and that the sale under Regulation 32(e) was already concluded and final.

The Court, however, accepted the Appellant's argument that the sale under Regulation 32(f) was the correct description and that the order dated 02.09.2024 should be clarified accordingly. The Court reasoned that such clarification would not affect the rights or liabilities of any party and was consistent with the SCC decision and prior orders.

4. Scope of the Adjudicating Authority's Inherent Powers under Section 60(5) of the I&B Code

The Appellant contended that even after the liquidator filed the application for closure of liquidation proceedings, the Adjudicating Authority retained inherent powers under Section 60(5) of the I&B Code to modify or clarify orders to meet ends of justice. The Appellant sought to invoke this power to insert the expression "sale of business of the Corporate Debtor as a going concern" to give effect to the SCC resolution.

The Adjudicating Authority had held that the closure application barred such modification. The Court disagreed, holding that filing of the closure application did not curtail the Tribunal's inherent powers to clarify or modify orders where no prejudice was caused to any party and justice so required.

The Court emphasized that the respondents themselves did not oppose the modification and recognized that it would not materially affect any legal rights or liabilities.

5. Treatment of Competing Arguments and Evidence

The Court carefully considered the conflicting contentions: the Adjudicating Authority's emphasis on finality of sale and issuance of sale certificate versus the Appellant's reliance on SCC resolutions and regulatory provisions. The Court found merit in the Appellant's contentions, especially given the consensus of the respondents not to oppose the clarification.

The Court also addressed the alleged afterthought argument by the Adjudicating Authority, rejecting it as unfounded given the contemporaneous documents and prior orders supporting the Appellant's position.

Conclusions

The Court allowed the appeal, quashed the impugned order to the extent it rejected the clarification application, and directed that the order dated 02.09.2024 be treated as modified to reflect that the Corporate Debtor was sold as a going concern under Regulation 32(f) (sale of business of the Corporate Debtor as a going concern). The Court held that such clarification was consistent with the SCC resolution, prior orders, and did not prejudice any party.

Significant Holdings

"Merely a resolution of SCC as that taken in 10th SCC meeting would not have a binding effect, on the sale of the Corporate Debtor as a going concern, and the subsequent issuance of the sale certificate" - held by the Adjudicating Authority was rejected by the Court upon proper scrutiny of the evidence.

"Mere filing of an application by the Liquidator for closure of the liquidation proceedings will not curtail the right of exercise of inherent powers by the Tribunal for meeting the ends of justice particularly when it does not have any adverse bearing on the rights of any of the parties."

"The order dated 02.09.2024, would be treated to be modified to the extent that the Corporate Debtor has been sold as a going concern in accordance with Regulation 32(f) of the IBBI (Liquidation Process) Regulations, 2016."

The core principles established include the recognition of the binding nature of SCC resolutions in liquidation proceedings, the applicability of Regulation 32(f) for sale of business as a going concern, the scope of the Adjudicating Authority's inherent powers to clarify orders post liquidation closure application, and the importance of giving effect to stakeholder decisions to ensure just outcomes.

The core legal questions considered by the Tribunal in these Company Appeals are:

• Whether the delay of 210 days and 213 days respectively in refiling the Company Appeals can be condoned under Rule 26 of the National Company Law Appellate Tribunal (NCLAT) Rules, 2016.
• Whether the reasons advanced by the Appellant for the delay in refiling-primarily, misplacement of physical appeal documents during transit and delay in obtaining legible copies of essential documents-constitute "sufficient cause" to justify condonation of such an inordinate delay.
• Whether the procedural requirements and timelines prescribed for filing and refiling appeals under the Insolvency and Bankruptcy Code (IBC), 2016, particularly under Section 61(2) and Rule 26 of the NCLAT Rules, should be strictly or liberally construed in the context of delay condonation applications.
• Whether the presence of multiple counsels on record affects the responsibility for timely filing and refiling of appeals and the assessment of diligence exercised by the Appellant.
• What is the appropriate legal standard and approach to be adopted in assessing condonation of delay in refiling appeals under the IBC regime, considering the balance between procedural flexibility and the need for timely disposal of insolvency matters.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the delay of over 200 days in refiling the Appeals can be condoned under Rule 26 of NCLAT Rules, 2016.

Relevant Legal Framework and Precedents: Rule 26 of the NCLAT Rules, 2016 governs condonation of delay in refiling appeals. The provision is procedural and has been interpreted to allow some degree of flexibility, unlike the strict timelines under Section 61(2) of the IBC for initial filing of appeals. The Supreme Court and various benches of NCLAT have held that while the timelines for filing appeals under IBC are important, the period allowed for removal of defects and refiling is directory, not mandatory, and condonation may be granted on sufficient cause. However, the cause must be genuine and reasonable, not artificial or frivolous (as per the judgments in Surendra Trading Co., Innovators Cleantech Pvt. Ltd., and others).

Court's Interpretation and Reasoning: The Tribunal acknowledged that Rule 26 is not to be rigidly construed and some flexibility can be granted for procedural delays. However, it emphasized that such latitude cannot be extended when the delay is inordinate (over 200 days) and the explanation is not satisfactory. The Tribunal referred to the principle that "sufficient cause" means a cause that is adequate, reasonable, and not due to negligence or lack of bona fide effort. It relied on authoritative precedents including the Supreme Court's interpretation of "sufficient cause" and the five-judge bench of NCLAT in V.R. Ashok Rao, which distinguished condonation of delay in initial filing and refiling, emphasizing case-by-case scrutiny.

Key Evidence and Findings: The Appellant's explanation for delay was that physical appeal documents were misplaced during transit from Hyderabad to Chennai, and legible copies of essential documents were only obtained after a long delay. The defects in the e-filing were communicated in July 2024, but the appeals were only refiled in February 2025, after 210 and 213 days respectively. The Tribunal noted glaring omissions in the explanation: no specific date or person responsible for misplacement was identified, nor was there a credible account of how the documents were retrieved.

Application of Law to Facts: The Tribunal found the explanation to be vague and unsubstantiated, concluding that the delay was neither bona fide nor due to circumstances beyond control. The presence of multiple counsels on record further undermined the Appellant's claim, as other counsels could have acted diligently to rectify defects within the prescribed time. The Tribunal held that the delay was caused by lack of diligence and was artificially manufactured to seek condonation.

Treatment of Competing Arguments: The Appellant urged a liberal approach to condonation, emphasizing procedural nature of delay and the interest of hearing the appeal on merits. The Respondent strongly opposed, pointing to the inadequacy and vagueness of reasons, and the availability of multiple counsels who could have ensured timely compliance. The Tribunal sided with the Respondent, underscoring the importance of strict adherence to timelines in insolvency proceedings and the need to prevent abuse of process.

Conclusion: The Tribunal declined to condone the delay of over 200 days in refiling the appeals, holding that the reasons given were insufficient and did not meet the test of "sufficient cause" under Rule 26. The delay applications were dismissed.

Issue 2: Whether the reasons given for delay-misplacement of appeal documents and delay in obtaining legible copies-are sufficient to justify condonation.

Relevant Legal Framework and Precedents: The Supreme Court's elucidation of "sufficient cause" requires that the party seeking condonation must demonstrate that the delay was not due to negligence or lack of bona fide effort and that the explanation is reasonable and credible. The NCLAT Principal Bench in Innovators Cleantech and Adisri Commercial Pvt. Ltd. emphasized that condonation cannot be granted on frivolous or perfunctory grounds, especially in insolvency matters where timelines are critical.

Court's Interpretation and Reasoning: The Tribunal found the Appellant's explanation to be deficient on multiple counts: absence of specific dates or persons responsible for misplacement, unexplained delay in retrieval, and failure to act despite knowledge of defects. The Tribunal noted that the explanation appeared to be "manufactured" and lacked credibility. It further reasoned that the presence of multiple counsels on record meant that the Appellant had sufficient resources to comply with timelines, and failure to do so indicated lack of diligence.

Key Evidence and Findings: The only evidence was the Appellant's pleadings stating misplacement and delay in obtaining legible documents. The Tribunal highlighted the absence of documentary proof or credible explanation for the long delay. The defect notices were issued in July 2024, but the appeals were refiled only in February 2025, indicating a prolonged period of inaction.

Application of Law to Facts: Applying the "sufficient cause" test, the Tribunal concluded that the reasons did not satisfy the standard of adequacy or bona fide effort. The delay was not excusable and was a result of negligence or lack of diligence.

Treatment of Competing Arguments: The Appellant's counsel argued for a liberal approach to avoid denial of justice on technical grounds. The Respondent's counsel argued that the explanation was vague and the delay was avoidable. The Tribunal accepted the Respondent's position, emphasizing the need to uphold the integrity and timeliness of insolvency proceedings.

Conclusion: The reasons given for delay were insufficient and did not constitute "sufficient cause" for condonation.

Issue 3: The role of multiple counsels on record in assessing diligence and responsibility for timely filing/refiling.

Relevant Legal Framework and Precedents: The general principle in litigation is that where multiple counsels represent a party, the responsibility to act diligently is collective. Negligence or inaction by one counsel does not absolve the party or other counsels of responsibility.

Court's Interpretation and Reasoning: The Tribunal observed that the Appellant was represented by three counsels, and even if one counsel was negligent or mishandled documents, the others could have acted to rectify defects within time. This established lack of overall diligence on the part of the Appellant.

Application of Law to Facts: The Tribunal found that the Appellant's failure to ensure timely refiling despite multiple counsels was a serious dereliction, undermining the plea for condonation.

Conclusion: Presence of multiple counsels heightened the expectation of diligence and militated against condonation of delay based on negligence or carelessness.

Issue 4: The appropriate standard for condonation of delay in refiling appeals under the IBC regime balancing procedural flexibility and the Code's emphasis on timely disposal.

Relevant Legal Framework and Precedents: The IBC regime mandates strict timelines for resolution of insolvency matters to ensure efficacy and prevent abuse. The Supreme Court and NCLAT have held that while procedural delays may be condoned if justified, the courts must be cautious not to allow inordinate delays that undermine the Code's objectives. The concept of "sufficient cause" must be applied judiciously, balancing the interests of justice and the need for timely adjudication.

Court's Interpretation and Reasoning: The Tribunal reiterated that condonation of delay in refiling is discretionary but must be exercised judiciously, with a rigorous scrutiny of the reasons. The Tribunal emphasized that the test of reasonableness and genuineness of the cause is paramount and that condonation cannot be granted on flimsy or artificial grounds. The Tribunal referenced the principle that the timelines under IBC are not mere procedural technicalities but integral to the Code's framework.

Application of Law to Facts: Given the inordinate delay and inadequate explanation, the Tribunal held that condonation would be contrary to the spirit and purpose of the IBC and its prescribed timelines.

Conclusion: The Tribunal adopted a stringent standard for condonation of delay in refiling under IBC, requiring credible and reasonable explanation, which was absent in this case.

3. SIGNIFICANT HOLDINGS

"The word 'sufficient cause' itself will mean that it would be necessary for the parties availing the benefit of condonation of delay to explain the reasons, which will then provide a latitude to condone delay of an act and to permit to perform an act which has otherwise stands debarred by time."

"The explanation of the delay has had to be in such a manner that, it would stand the test of genuineness by virtue of application of a common human prudence."

"The delay in refiling cannot be condoned on frivolous grounds."

"Where there is more than one counsel on record for a party and their authority is still surviving under the eyes of law, the dereliction on the part of one will not restrict the other counsels on record to take appropriate diligent action to ensure that the appeal is filed in time."

"The period allowed for removal of defects is only directory. However, the question to be considered is as to whether there was justifiable cause for delay or not."

"An inordinate delay in refiling the Appeal which reflects lack of diligence or common prudence cannot be condoned."

"The timelines in proceedings under the IBC, 2016, always play a very pivotal role in deciding the proceedings, which are to be decided within a time limit carved out under the provisions of the Code."

Final determinations:

• The applications for condonation of delay in refiling the respective Company Appeals, involving delays of 210 and 213 days, were dismissed for lack of sufficient cause.
• The Appeals themselves were dismissed on account of failure to satisfactorily explain the inordinate delay in refiling.
• All pending interlocutory applications were treated as closed consequent to dismissal of the appeals.

1. Whether the Opposite Party (OP), a public sector bank, engaged in anti-competitive agreements or practices violating Section 3 of the Competition Act, 2002, by arbitrarily increasing interest rates, imposing hidden charges, or manipulating loan terms to the detriment of the Informant.

2. Whether the OP abused its dominant position in the relevant market, defined as the market for the provision of banking and loan services in India, in contravention of Section 4 of the Competition Act, 2002.

3. Whether the OP's actions, including retrospective imposition of higher interest rates, withholding collateral documents to obstruct loan transfers, undervaluation of assets under SARFAESI proceedings, and charging interest on interest, constitute unfair trade practices or anti-competitive conduct.

4. Whether the Informant is entitled to interim reliefs and compensation for alleged losses caused by the OP's conduct.

Issue-wise detailed analysis:

Issue 1: Alleged Anti-Competitive Agreements and Practices under Section 3

The Informant alleged that the OP arbitrarily increased interest rates on various loans, imposed hidden charges, and retrospectively demanded back interest, thereby engaging in unfair trade practices violating Section 3 of the Competition Act. Further, the Informant claimed that the OP withheld collateral documents needed by competing lenders, obstructing loan transfers and suppressing competition. Additionally, the Informant alleged collusion between the OP and valuers to undervalue assets under SARFAESI proceedings to facilitate easy auctioning and eliminate competition.

The Commission examined the sanction letters and correspondence between the parties, noting that the loan sanction letter explicitly stated that interest rates were subject to review and change by the bank based on parameters such as Debt Service Coverage Ratio (DSCR), Debt/Equity ratio, repayment schedule, and other risk factors. The sanction letter also indicated that the interest rate was subject to periodic revision by the bank. The Commission found that the interest rate on the Term Loan was initially 16.20% p.a., later revised to 14.20% p.a., and subsequently to 11.00% p.a., with annual reset clauses, all agreed upon by the Informant.

Regarding the retrospective imposition of back interest, the Commission noted that the OP had acknowledged an error in resetting the interest rate but treated it as a contractual dispute between the parties rather than an anti-competitive practice. The Commission emphasized that such disputes over contractual terms do not fall within the ambit of the Competition Act.

On the allegation of withholding collateral documents, the Commission observed that banks typically retain collateral documents until the loan is fully repaid to safeguard their interests, and no evidence was presented to show that this practice was intended to suppress competition.

Concerning the alleged collusion with valuers under SARFAESI proceedings, the Commission noted that the SARFAESI Act empowers banks to enforce security interests and auction properties upon borrower default. The Informant failed to provide any substantive evidence of anti-competitive agreements or undervaluation conspiracy. Hence, the Commission found no merit in this allegation.

In sum, the Commission concluded that the allegations under Section 3 lacked evidentiary support and were largely contractual or procedural disputes outside the scope of competition law.

Issue 2: Abuse of Dominant Position under Section 4

The Informant contended that the OP, being the third largest nationalized bank with a substantial market share, held a dominant position in the relevant market and abused it by imposing unfair loan terms and interest rates.

The Commission analyzed the relevant market as the provision of banking and loan services in India. It noted that the OP ranked sixth among public sector banks with a market share of approximately 5.73%. The Commission identified the presence of numerous other banks, including large private and public sector banks such as HDFC, SBI, PNB, Bank of Baroda, Indian Bank, ICICI Bank, Central Bank of India, and Indian Overseas Bank.

This multiplicity of competitors indicated a competitive market environment where the OP could not independently determine market conditions or impose terms without competitive constraints. Therefore, the Commission held that the OP was not in a position of dominance in the relevant market. Without dominance, the question of abuse under Section 4 did not arise.

Issue 3: Application of SARFAESI Act and Related Allegations

The Informant alleged that the OP acted without following due process under the SARFAESI Act, appointed valuers unilaterally, undervalued assets, and used securitization proceedings to eliminate competition.

The Commission explained that the SARFAESI Act grants banks statutory rights to enforce security interests and recover dues by auctioning secured assets upon borrower default. The appointment of valuers and conduct of auctions are governed by the SARFAESI Act and related regulations. The Commission found no evidence that the OP's actions under SARFAESI were anti-competitive or violative of the Competition Act. These matters pertain to enforcement of security and recovery of dues, not competition law.

Issue 4: Reliefs and Interim Measures

The Informant sought interim reliefs restraining the OP from pursuing legal remedies for recovery, refund of amounts paid, waiver of penal interest and charges, and compensation for alleged losses.

The Commission observed that since no prima facie case of contravention of Sections 3 or 4 was established, no grounds existed to grant interim relief or compensation. The disputes raised were contractual or procedural in nature and did not warrant intervention under the Competition Act.

Significant holdings:

The Commission held that the relevant market is the provision of banking and loan services in India, characterized by multiple large players, negating the existence of dominance by the OP.

On the question of dominance, the Commission stated: "The existence of large number of players in the relevant market shows that the OP cannot operate independently in the market and cannot be considered to be in a position of dominance in the relevant market. Therefore, in the absence of dominance, the issue of abuse of dominance does not arise."

Regarding the interest rate changes, the Commission emphasized the contractual nature of the loan terms: "The loan was sanctioned at an interest rate of 16.20% p.a. ... the interest stipulated is subject to review by Bank ... and also further changes as may be decided by the bank ... The above terms and conditions have been agreed upon by the Informant with the OP. Accordingly, the Commission finds that the allegation against the OP regarding arbitrary changes in the interest rates is without merit."

On the retrospective back interest charges, the Commission noted: "The same appears to be a dispute between the parties with respect to the agreed terms and conditions and does not fall under the purview of the Act."

Concerning the SARFAESI-related allegations, the Commission concluded: "The Informant has not provided any evidence in support of this allegation. Hence, no case of contravention of provisions of Section 3 of the Act is made out against the OP."

Finally, the Commission concluded that no prima facie case under Sections 3 or 4 was made out and accordingly closed the matter under Section 26(2) of the Act, rejecting all reliefs sought by the Informant.

1. Whether the Provisional Attachment Order attaching properties worth Rs. 1,42,83,000/- was valid and justified, given that the pecuniary loss quantified by the Special Judge, CBI was Rs. 1,15,00,000/-.

2. Whether the attachment of properties exceeding the alleged pecuniary loss, including amounts withheld in arbitration and security deposits, was legally permissible.

3. The legal effect of amounts withheld by the Municipal Corporation of Delhi (MCD) pursuant to arbitration proceedings and whether such withholding satisfies the requirement of confiscating proceeds of crime.

4. The applicability and interpretation of the Prevention of Corruption Act, 1988, and relevant provisions of the Indian Penal Code (IPC) in relation to attachment of properties alleged to be proceeds of crime.

5. The evidentiary basis and procedural propriety of the attachment order, including the reliance on charge-sheet quantification and absence of certain court orders on record.

Issue-wise Detailed Analysis:

1. Validity of Attachment Order Relative to Quantified Pecuniary Loss

The legal framework governing attachment of properties as proceeds of crime is primarily derived from the Prevention of Corruption Act, 1988, and procedural safeguards under the relevant statutes. The charge-sheet filed by the prosecution quantified the alleged pecuniary loss at Rs. 1,42,83,000/-, while the appellant contended that the Special Judge, CBI had quantified the loss at Rs. 1,15,00,000/-, limiting the permissible attachment to that amount.

The Tribunal examined the record and noted the absence of any copy of the Special Judge's order quantifying the loss at Rs. 1,15,00,000/-. Mere pleadings by the appellant without documentary proof were held insufficient to challenge the attachment order. The Tribunal relied on the charge-sheet's quantification of Rs. 1,42,83,000/- as the operative figure for attachment.

The Court's reasoning emphasized that attachment of properties equivalent to the proceeds of crime is justified where there is credible quantification of loss, and in absence of contradictory documentary evidence, the charge-sheet's figure prevails. The appellant's contention on this ground was rejected.

2. Attachment of Properties Beyond Alleged Pecuniary Loss and Withheld Amounts in Arbitration and Security Deposits

The appellant argued that an amount of Rs. 3.6 crores was withheld by MCD pursuant to arbitration proceedings and that security deposits of Rs. 2,46,16,149/- were also held by MCD, which collectively exceeded the alleged proceeds of crime. Therefore, further attachment of properties was unnecessary and unjustified.

The Tribunal analyzed the arbitration award and related orders, noting that while the arbitration award deducted Rs. 1,42,83,000/-, this amount was not yet payable to the appellant but was subject to ongoing litigation, including a pending appeal before the High Court of Delhi. The Court observed that the arbitration matter was not final and that the withheld amount did not equate to actual proceeds of crime realized by the appellant.

The Tribunal further noted that the security deposit amount lying with MCD was distinct from proceeds of crime and could not substitute for attachment of properties. The Court held that attachment of properties equivalent to the quantified proceeds of crime is a protective measure to safeguard the State's interest pending final adjudication.

The Tribunal rejected the appellant's argument that withholding amounts in arbitration or security deposits negated the need for attachment of properties.

3. Legal Effect of Withholding Amounts in Arbitration Proceedings

The appellant relied on the arbitration award and the withholding of Rs. 1,42,83,000/- as satisfying the requirement of confiscating proceeds of crime. The Tribunal scrutinized the arbitration award and related High Court order, which stayed the operation of the award subject to deposit of the awarded amount.

The Court reasoned that the arbitration proceedings were ongoing and the award was not final or executable at the time of attachment. Therefore, the withheld amount did not constitute proceeds of crime already realized by the appellant but was contingent and subject to judicial review.

Consequently, the Tribunal held that attachment of properties equivalent to the alleged proceeds of crime was appropriate to protect the State's interest pending final resolution of arbitration and criminal proceedings.

4. Applicability of Prevention of Corruption Act and IPC Provisions to Attachment

The FIR registered under Sections 120-B (criminal conspiracy), 420 (cheating), 468 (forgery for purpose of cheating), 471 (using forged documents) of IPC, and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, formed the basis for attachment of properties as proceeds of crime.

The Tribunal acknowledged the serious allegations of manipulation and forgery in tender documents to secure undue advantage, leading to wrongful loss to MCD. The attachment of properties was a preventive measure authorized under the PC Act to prevent dissipation of proceeds of crime.

The Court emphasized that the attachment order was consistent with the statutory mandate to protect public interest in corruption cases and was supported by the charge-sheet quantification of loss.

5. Evidentiary Basis and Procedural Propriety of Attachment Order

The appellant challenged the attachment order on the ground that the quantum of loss was overstated and that relevant court orders quantifying loss were not placed on record.

The Tribunal found that the appellant failed to produce the order of the Special Judge, CBI quantifying loss at Rs. 1,15,00,000/-. The absence of such critical evidence weakened the appellant's case.

The Tribunal also noted that the Adjudicating Authority had duly considered the allegations and evidence, including the charge-sheet and audit reports, before confirming the attachment.

The Court concluded that the attachment order was passed following due process and was supported by sufficient material on record.

Treatment of Competing Arguments

The appellant's arguments centered on limiting attachment to the lower quantified loss amount, reliance on arbitration withholding, and availability of security deposits as sufficient to cover alleged proceeds of crime.

The respondent emphasized the seriousness of allegations, ongoing criminal proceedings, and the need to safeguard State interest by attaching properties equivalent to proceeds of crime as quantified in the charge-sheet.

The Tribunal balanced these arguments by requiring documentary proof for any deviation from the charge-sheet quantification and recognizing the provisional nature of arbitration proceedings. It rejected the appellant's contentions due to lack of supporting evidence and ongoing litigation status.

Conclusions

The Tribunal concluded that the Provisional Attachment Order attaching properties worth Rs. 1,42,83,000/- was valid and justified. The attachment was in accordance with the Prevention of Corruption Act and supported by the charge-sheet quantification of pecuniary loss.

The withholding of amounts in arbitration proceedings and security deposits did not negate the necessity or legality of attachment of properties equivalent to proceeds of crime.

The appellant failed to produce relevant court orders to support their claim of lower pecuniary loss, and the Tribunal found no merit in the appeal, dismissing it accordingly.

Significant Holdings:

"In the absence of copy of the order, mere pleadings of the appellant would not serve the purpose. In fact, the charge-sheet quantified the amount of proceed for Rs. 1,42,83,000/- and accordingly attachment of the properties to the equivalent value has been made which could not have been for a sum of Rs. 1,15,00,000/-."

"The amount of Rs. 1,42,83,000/- said to have been withheld but that amount is yet payable and cannot represent the proceeds of crime rather for that property of equivalent value of Rs. 1,42,83,000/- has been attached."

"Withholding of the amount in the Arbitration Award would not mean that proceeds of crime are satisfied, rather, the High Court may modify the order at any time on consideration of the rival submissions of the parties. Thus, to protect the proceeds, the respondent has rightly attached the amount of Rs. 1,42,83,000/-."

Core principles established include the requirement that attachment of properties as proceeds of crime must be based on credible quantification supported by documentary evidence; provisional withholding of amounts in arbitration does not satisfy the requirement of confiscating proceeds of crime; and attachment orders serve as protective measures pending final adjudication in criminal and arbitration proceedings.

Final determinations on each issue affirm the validity of attachment of properties worth Rs. 1,42,83,000/-, reject the appellant's challenge based on lesser quantified loss and withheld amounts, and uphold the Adjudicating Authority's order confirming the Provisional Attachment Order.

(i) Whether the Enforcement Directorate (ED) was justified in attaching the appellant's movable properties under the PMLA based on the investigation and charge-sheet filed by the Special Cell, Delhi Police, without conducting an independent investigation into the predicate offence;

(ii) Whether the Adjudicating Authority committed any error or violated principles of natural justice in confirming the attachment of the properties without properly considering the appellant's detailed reply and material submitted;

(iii) Whether the mere filing of a charge-sheet by the police against the appellant for scheduled offences under various penal statutes is sufficient to justify attachment of properties as 'proceeds of crime' under the PMLA;

(iv) The scope and extent of the ED's investigation powers vis-`a-vis the predicate offence investigation conducted by the police/CBI under criminal law;

(v) The burden of proof regarding the source of acquisition of attached properties and the quantification of proceeds of crime in cases where the accused's income is derived from unlawful activities;

(vi) Whether the appellant's contentions regarding lawful explanation of money transactions and violation of audi alteram partem principles were rightly rejected by the Adjudicating Authority.

Issue-wise Detailed Analysis:

1. Justification of Attachment Based on Police Investigation and Charge-sheet

The legal framework under PMLA mandates that the ED investigates offences relating to money laundering, which are predicated on scheduled offences committed under other laws. The predicate offence investigation is conducted by police or other competent agencies, and the ED's role is to trace and attach proceeds of crime derived from such offences.

The Court emphasized that the ED is not empowered to re-investigate the predicate offence but must satisfy itself on the following points: (i) existence of prima facie incriminating evidence against the accused for commission of scheduled offence; (ii) whether proceeds of crime were generated by such offence; (iii) whether such proceeds were laundered or likely to be laundered; (iv) the mode or trail of layering of proceeds; (v) attachment of other properties in absence of direct proceeds; and (vi) genuineness of claimants of attached properties.

In the present case, the charge-sheet filed by the Special Cell, Delhi Police, detailed extensive investigation into the conspiracy and execution of an explosive attack on an Israeli Embassy vehicle. The charge-sheet included confessions by the appellant, corroborative witness statements, call detail records linking the appellant to co-conspirators, recovery of incriminating materials including cash, vehicles, electronic devices, and expert opinion confirming use of high explosives. The ED relied on this material to attach the appellant's movable properties under PMLA.

The Court found that the appellant's contention that ED failed to conduct an independent investigation was misplaced. The ED's role is limited to investigation of money laundering aspects and not the predicate offence itself. The charge-sheet and investigation by the police provided sufficient prima facie evidence to justify attachment.

2. Alleged Violation of Principles of Natural Justice

The appellant argued that the Adjudicating Authority failed to properly consider his detailed reply and material explaining the source of money transactions and did not provide a proper hearing, thereby violating audi alteram partem.

The Court noted that the Adjudicating Authority issued a show cause notice, heard the parties, and passed a reasoned order confirming the attachment. The appellant's submissions and material were considered but found insufficient to rebut the presumption that the attached properties were proceeds of crime. The Court did not find any procedural irregularity or violation of natural justice principles in the confirmation order.

3. Sufficiency of Charge-sheet for Attachment under PMLA

The Court held that the filing of a charge-sheet by the police for scheduled offences is a relevant and sufficient ground to form a belief regarding commission of the predicate offence for the purposes of PMLA investigation. The charge-sheet is a formal document after conclusion of police investigation and contains prima facie evidence against the accused.

The Court rejected the appellant's submission that mere filing of charge-sheet without independent ED investigation cannot justify attachment. The ED is entitled to rely on the police investigation and charge-sheet as material evidence.

4. Scope of ED's Investigation Powers

The Court clarified that the ED's investigation under PMLA is confined to the offence of money laundering and tracing proceeds of crime. The ED cannot re-investigate or re-appreciate the predicate offence facts, which is the domain of the police or other investigating agencies under criminal procedure.

This delineation preserves the separation of investigations and avoids duplication or interference.

5. Burden of Proof and Quantification of Proceeds of Crime

The Court discussed the burden of proof regarding acquisition of properties. Where a person has lawful income, the investigation agency can compare declared income and assets to identify unexplained wealth. However, in cases where the accused's income is derived solely from unlawful activities such as terrorism, drug trafficking, or extortion, quantification of proceeds of crime is difficult.

In such cases, the Court held that the entire assets in possession of the accused can be presumed to be proceeds of crime unless the accused satisfactorily explains the lawful source of such assets. The burden is on the accused to justify acquisition of unexplained assets.

Non-quantification of exact proceeds of crime is not fatal to the case of the investigation agency.

6. Application of Law to Facts and Treatment of Competing Arguments

The Court applied the above legal principles to the detailed facts of the case, which included:

• Confession statements by the appellant during police custody indicating involvement in conspiracy and facilitation of the blast;
• Recovery of incriminating materials including cash (USD 1250), vehicles used for recce, mobile phones with call records linking to co-conspirators;
• Expert chemical analysis confirming use of TNT explosives;
• Call detail records showing appellant's communications with Iranian nationals involved in the conspiracy;
• Hotel and travel records corroborating movements of appellant and associates;
• Admission by the appellant of receiving payments for assisting in the attack plan;
• Charge-sheet filed under various sections of IPC, Unlawful Activities (Prevention) Act, and Explosive Substances Act, which are scheduled offences under PMLA.

The appellant's arguments that the attachment was based on assumptions and that he had explained the source of funds were rejected as insufficient to rebut the prima facie evidence. The Court found no merit in the contention that the Adjudicating Authority ignored the appellant's material or failed to provide a proper hearing.

The respondent's argument that the criminal trial is ongoing and the appellant is yet to be acquitted was also accepted, indicating that the attachment at this stage is justified to preserve the proceeds of crime.

Significant Holdings:

"The police/CBI has to conduct investigation for the commission of the predicate/schedule offence and ED is not empowered to re-investigate the same. It has to see only the following points during its investigation for money laundering: (i) Whether there is any prima facie incriminating evidence against the culprits for commission of schedule offence; (ii) Whether any proceeds of crime were generated by commission of crime/predicate offence; (iii) Whether the said proceeds of crime are laundered, or likely to be laundered; (iv) If proceeds of crime are laundered, then the mode of layering of the same, or the trail of POC; (v) If proceeds of crime are already dissipated, then the other properties of the culprits which can be attached, in absence of direct/ indirect POC; (vi) Whether the claimants of attached properties are genuine, or part & parcel of conspiracy."

"In cases where any person who is not earning his income from any lawful sources and his only earnings are from illegal sources like indulging in drug trafficking, extortion, dealing in arms & ammunitions, terrorist funding etc., then it becomes difficult for the investigation agency to quantify the exact proceeds of crime. In such circumstances, the whole assets in the possession of the said person can clearly be presumed to be acquired from the proceeds of crime, unless he duly explains the source of income for acquiring the property."

"The burden of proof qua the acquisition of unexplained huge assets is on the part of the concerned person and non-quantification of the exact proceeds of crime is always not fatal to the case of the investigation agency."

"The mere filing of charge-sheet by Delhi Police is sufficient ground to believe regarding the commission of alleged fraud for the purposes of PMLA investigation."

"The ED cannot reinvestigate the commission of offence qua the predicate offence and it has to confine itself to the commission of offence of Money Laundering and the trail of 'proceeds of crime'."

"The Adjudicating Authority's confirmation of attachment after considering the appellant's reply and material does not violate principles of natural justice."

Final determinations:

• The appeal challenging confirmation of attachment of movable properties under PMLA was dismissed as devoid of merit;
• The ED was justified in relying on police investigation and charge-sheet to attach properties as proceeds of crime;
• The appellant failed to discharge burden of proving lawful acquisition of attached properties;
• The Adjudicating Authority did not err in confirming attachment or violate principles of natural justice;
• The ongoing criminal trial and absence of acquittal justify continued attachment at this stage;
• The rights of parties in criminal trial remain unaffected by this order.

- Whether the properties attached under the Provisional Attachment Order (PAO) issued under Section 5(1) of the Prevention of Money Laundering Act, 2002 (PMLA) constitute 'proceeds of crime' as defined under Section 2(1)(u) of the ActRs.

- Whether the appellant, while functioning as Senior Manager, Metallurgical Wing, MECON Ltd., received illegal gratification from M/s Zeal India Chemicals and M/s Shiv Machine Tools, and whether the amounts received in various accounts of the appellant and his relatives/friends bear nexus to the scheduled offenceRs.

- Whether the appellant's contention regarding the sale of ancestral properties and subsequent cancellation of sale agreement negates the allegation of illegal gratification and acquisition of properties from proceeds of crimeRs.

- Whether the enhancement in the value of the properties and the transactions involving the properties indicate laundering of illegal gratification receivedRs.

- Whether the appellant has successfully rebutted the presumption of proceeds of crime under the PMLARs.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the properties attached are 'proceeds of crime' under Section 2(1)(u) of the PMLARs.

The legal framework under PMLA defines 'proceeds of crime' as any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. The Act empowers attachment of such properties under Section 5(1) and confirmation thereof by the Adjudicating Authority under Section 8.

The Court observed that the appellant was alleged to have accepted illegal gratification amounting to Rs. 1,65,45,000/- from M/s Zeal India Chemicals and M/s Shiv Machine Tools during his tenure as Senior Manager, MECON Ltd. The amounts were routed through various bank accounts in the names of the appellant and his relatives/friends.

Material on record revealed that the properties attached-a residential duplex apartment valued at Rs. 1.25 crores and a car valued at Rs. 3,71,848/--were acquired through amounts traced to these illegal payments. The appellant failed to provide any legitimate source for these acquisitions other than the amounts received from the two firms.

The Tribunal noted the disproportionate enhancement in the value of properties and the timing and manner of transactions, which indicated that the properties were acquired out of the proceeds of crime.

Competing arguments by the appellant, alleging legitimate transactions for sale of ancestral properties and independent dealings, were found unsupported by evidence such as sale deeds and were further weakened by the cancellation of the alleged sale agreement.

Conclusion: The properties attached were rightly held to be proceeds of crime under the PMLA.

Issue 2: Whether the appellant received illegal gratification from M/s Zeal India Chemicals and M/s Shiv Machine Tools and the amounts bear nexus to the scheduled offenceRs.

The FIR and charge sheet allege that the appellant, while preparing technical specifications and tender appraisal reports for projects at Durgapur Steel Plant and Bokaro Steel Plant, conspired with the two firms to award contracts despite their lack of requisite experience, in exchange for illegal gratification.

Evidence included bank statements showing receipt of Rs. 49,50,000/- from M/s Zeal India Chemicals and Rs. 1,15,95,000/- from M/s Shiv Machine Tools in accounts belonging to the appellant and his relatives/friends during the relevant periods.

The Court examined the modus operandi, noting the appellant's role in passing designs and tender reports facilitating the firms' selection despite their ineligibility. The transfer of funds through banking channels and subsequent use of these funds to acquire properties and other assets established the nexus between the illegal gratification and the scheduled offence.

The appellant's defense that the amounts were received for legitimate property transactions was undermined by the absence of corroborating sale deeds and the timing of transactions vis-`a-vis the offences.

Conclusion: The appellant received illegal gratification linked to the scheduled offence, establishing the nexus required under the PMLA.

Issue 3: Whether the appellant's claim of sale of ancestral properties and cancellation of sale agreement negates the allegation of illegal gratificationRs.

The appellant contended that amounts received from M/s Zeal India Chemicals and its sister concern were pursuant to a sale agreement dated 12.10.2012 for ancestral properties predating the tender projects. It was argued that the amounts credited to the appellant and his relatives were legitimate sale proceeds.

However, the sale agreement was an unregistered document and only Rs. 2,00,000/- was received as per its terms against a consideration of Rs. 70,00,000/-. Moreover, the agreement was cancelled by a deed dated 12.01.2017, and the entire sale consideration was returned to M/s Zeal India Chemicals.

The Tribunal held that the cancellation of the sale agreement nullified the appellant's claim of legitimate receipt of the amounts. The failure to produce sale deeds and other documentary evidence further weakened the appellant's contention.

The respondent's objection to the introduction of the sale agreement at the appellate stage without prior pleading was also upheld, emphasizing procedural propriety.

Conclusion: The appellant's claim of legitimate sale transactions was not substantiated and did not negate the allegations of illegal gratification.

Issue 4: Whether the enhancement in property values and transaction patterns indicate laundering of illegal gratificationRs.

The appellant purchased a plot at Barasat for Rs. 26.23 lakhs using part of the illegal gratification. The property was later agreed to be sold for Rs. 80 lakhs through an agreement dated 08.07.2015, with payments received in installments over two years, culminating in a registered sale deed only in 2019.

The Tribunal noted the disproportionate increase in value-more than double the original price-and the backdating and manipulation of agreements to facilitate transfer of illegal money.

Further, the appellant transferred Rs. 70 lakhs received from M/s Shiv Machine Tools to a third party to purchase a duplex apartment worth Rs. 1.25 crores and also transferred funds for purchase of a car.

The Court found these transactions indicative of attempts to circulate and launder the proceeds of crime, with no credible explanation for the source of funds or the enhanced property values.

Conclusion: The pattern of transactions and property value enhancement supported the inference of money laundering of illegal gratification.

Issue 5: Whether the appellant has rebutted the presumption of proceeds of crime under PMLARs.

Section 24 of the PMLA casts a presumption that the attached property is proceeds of crime unless the contrary is proved. The appellant attempted to rebut this by asserting legitimate sale transactions and independent dealings of his wife.

However, the appellant failed to produce critical evidence such as registered sale deeds and failed to explain the source of funds for enhanced property values and subsequent transactions.

The Tribunal emphasized that mere assertions without documentary proof cannot rebut the statutory presumption, especially in light of the incriminating bank transactions and the timing of property acquisitions.

Conclusion: The appellant failed to discharge the burden to rebut the presumption that the attached properties were proceeds of crime.

3. SIGNIFICANT HOLDINGS

"The properties attached by PAO No. 01/2022 dated 22.04.2022 are the 'proceeds of crime' in terms of Section 2(1)(u) of the Act of 2002."

"The appellant, while posted and functioning as Senior Manager, Metallurgical Wing, MECON Ltd., entered into criminal conspiracy and received a sum of Rs. 1,65,45,000/- from M/s Zeal India Chemicals and M/s Shiv Machine Tools through various accounts belonging to him and his relatives/friends."

"The appellant failed to produce sale deeds or any credible evidence to support the claim of legitimate sale transactions and the cancellation of the sale agreement dated 12.10.2012 nullifies the alleged receipt of sale consideration."

"The disproportionate enhancement in the value of the properties and the pattern of transactions indicate laundering of illegal gratification received from the firms."

"The appellant has failed to rebut the presumption under Section 24 of the PMLA that the attached properties are proceeds of crime."

"Accordingly, the appeal is dismissed, and the impugned order of attachment is upheld."

1. Whether the demand notices and SVLDRS-3 forms issued by the respondents, which changed the petitioner's category from investigation to arrears and increased the tax liability, were valid and correctly calculated under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS Scheme).

2. Whether the time limit prescribed under Section 127(5) of the Finance Act, 2019 for payment of tax dues under the SVLDRS Scheme is mandatory or directory, particularly in light of the COVID-19 pandemic and related government notifications extending deadlines.

3. Whether the petitioner, who failed to pay the tax dues by the prescribed deadline due to financial hardship caused by the COVID-19 lockdown, is entitled to an extension of time to discharge its liabilities under the SVLDRS Scheme.

4. Whether the respondents' refusal to accept late payment and to issue a discharge certificate under the Scheme amounts to an injustice, especially considering the pandemic-related relief measures and judicial precedents.

5. The applicability and effect of the Supreme Court's suo motu orders extending limitation periods during the COVID-19 pandemic on the timelines prescribed under the SVLDRS Scheme.

6. The extent of the High Court's jurisdiction under Article 226 of the Constitution to grant relief in extraordinary circumstances where statutory timelines have not been met.

Issue-wise Detailed Analysis:

1. Validity and correctness of demand notices and SVLDRS-3 forms:

The petitioner filed nine declarations under the SVLDRS Scheme in the category of investigation, which entitled it to relief of 70% or 50% of the due tax depending on the amount involved. The petitioner's calculated liability after relief was Rs. 3,38,617/-. However, the respondents re-categorized the petitioner's case as arrears and issued SVLDRS-3 forms demanding Rs. 29,48,623/-, significantly higher.

The petitioner contended that payments made earlier (Rs. 40,10,740/-) were under directions of the respondents and included penalties, and thus should be deducted from the net amount payable. The respondents rejected the petitioner's request for revision, maintaining their calculations were as per law.

The Court noted the factual matrix was undisputed and found the respondents' re-categorization and calculation flawed. The petitioner was entitled to have the correct tax liability recalculated under the Scheme, considering the payments already made and the relief provisions.

2. Nature of time limit under Section 127(5) of Finance Act, 2019:

Section 127(5) required declarants to pay the tax dues by 30.06.2020. Due to the COVID-19 pandemic, the petitioner's hotel business was shut down, causing inability to pay by the deadline. The petitioner sought extension to 30.06.2021.

The Court examined the legislative framework and government notifications extending deadlines for compliance under the Scheme due to the pandemic. It also considered the Supreme Court's suo motu orders extending limitation periods from 15.03.2020 to 28.02.2022 to mitigate hardships caused by COVID-19.

Several High Courts (Madras, Bombay, Gujarat, Delhi) had held that the timelines under the SVLDRS Scheme are directory, not mandatory, and that extensions should be granted in view of the pandemic and the object of the Scheme.

The Court relied on these precedents and concluded that the time limits fixed under the Scheme are directory, allowing the Central Government to extend deadlines based on prevailing circumstances, such as the pandemic.

3. Entitlement to extension of time due to COVID-19 hardship:

The petitioner's inability to pay by 30.06.2020 was due to the nationwide lockdown and financial crisis caused by COVID-19. The petitioner had made representations for extension, which were rejected by the respondents.

The Court found that the petitioner was a bona fide declarant seeking to settle liabilities and that the pandemic was an extraordinary circumstance warranting relief. It noted that other courts had granted extensions and accepted payments made after the original deadline, subject to interest.

The Court held that the petitioner deserved an opportunity to make payment and avail the benefits of the Scheme, including issuance of the discharge certificate, after recalculating the correct liability.

4. Respondents' refusal to accept late payment and issue discharge certificate:

The respondents had refused to accept payments made after the deadline and declined to issue the discharge certificate (Form SVLDRS-4), effectively denying the petitioner the Scheme's benefits.

The Court observed that such refusal would defeat the Scheme's object of amicable resolution of legacy disputes and revenue recovery. It emphasized that procedural irregularities or delays caused by the pandemic should not result in denial of substantive justice.

Based on precedents, the Court held that the respondents' rejection of the petitioner's representation and refusal to issue the discharge certificate was unreasonable and liable to be set aside.

5. Effect of Supreme Court's extension of limitation orders:

The Court extensively referred to the Supreme Court's suo motu orders extending limitation from 15.03.2020 to 28.02.2022 due to COVID-19, which applied to all judicial and quasi-judicial proceedings.

The Court reasoned that these extensions should apply to the timelines under the SVLDRS Scheme, as the scheme involves quasi-judicial functions and procedural compliance.

This reinforced the view that the statutory timelines were not rigid and could be relaxed in extraordinary circumstances.

6. High Court's jurisdiction under Article 226 to grant relief:

The Court acknowledged that while departmental authorities may lack power to condone delay, the High Court under its extraordinary writ jurisdiction can pass orders necessary to do complete justice.

It relied on authoritative rulings affirming the High Court's broad powers to grant equitable relief in exceptional cases, especially where no prejudice is caused to the revenue and the relief furthers the Scheme's objectives.

The Court found that the petitioner's case merited such relief due to the pandemic-induced hardship and the petitioner's bona fide conduct.

Application of law to facts and treatment of competing arguments:

The respondents argued that the Scheme's timelines were mandatory and that the petitioner's failure to pay by the deadline disentitled it from benefits. They relied on the absence of statutory provisions for late payment and the principle that conditions of a scheme must be strictly complied with.

The Court, however, distinguished these submissions by highlighting the pandemic's unprecedented impact, the government's own extensions, and the judiciary's intervention to extend limitation periods.

The Court gave significant weight to the object of the SVLDRS Scheme-to amicably resolve legacy disputes and reduce litigation-and held that denying benefits on technical grounds would frustrate this purpose.

It also relied on a series of High Court judgments from various jurisdictions that had granted relief in similar circumstances, including acceptance of late payments and issuance of discharge certificates with interest.

The Court found no mala fide on the petitioner's part and noted that the petitioner had paid substantial sums and sought to comply in good faith.

Conclusions:

The Court quashed the demand notices and SVLDRS-3 forms issued by the respondents, set aside the letter upholding the calculations, and directed the respondents to recalculate the petitioner's correct tax liability under the Scheme after affording the petitioner an opportunity to present its case.

The Court declared that the time period prescribed under Section 127(5) of the Finance Act, 2019 is directory and that the petitioner is entitled to an extension of time to discharge its tax dues, particularly in light of the COVID-19 pandemic and the Supreme Court's extension of limitation orders.

The Court directed the respondents to accept the payment made by the petitioner and issue the discharge certificate under the Scheme, thereby granting the petitioner the Scheme's benefits despite the delay.

Significant holdings and core principles:

"The provisions under the Finance Bill, with regard to the fixation of time limit for availing the scheme and with regard to the extension of time for making payment of tax, is directory in nature. If it is mandatory, there will not be any delegation with regard to the Central Government to fix the time limit for availing the scheme and payment of tax. Since there is delegation with regard to the Central Government, it will only be directory in nature and that is the reason why the Central Government depends upon the situation prevailing in the country and extended the time limit from time to time."

"The object of the SVLDR Scheme is to bring about expeditious and effective resolution of old disputes and recoveries of old outstanding dues of the Government and reduction of administrative costs. Officers acting under the relevant statutes are expected to respect the object of the scheme and to ensure that the assessees get the benefit under the scheme."

"Though respondents have no power to condone the delay in payment, yet this Court in extraordinary writ jurisdiction can pass any order necessary to remedy injustice."

"The Supreme Court's suo motu orders extending the period of limitation from 15th March 2020 till 28th February 2022 apply to all judicial and quasi-judicial proceedings and must be considered in the context of statutory schemes like SVLDRS."

"Denying the benefits of the SVLDR Scheme would not only be contrary to the object of the scheme but also would be an injustice to the petitioner declarant who otherwise was eligible."

The Court's final determination was that the petitioner is entitled to have its tax liability recalculated under the Scheme, to make payment beyond the original deadline in view of the pandemic, and to receive the discharge certificate. The impugned notices and calculations were quashed, and directions were issued to the respondents to act accordingly.

The core legal questions considered by the Appellate Tribunal (AT) in this matter were:

• Whether the demand of service tax on port services, cargo handling services, and Goods Transport Agency (GTA) services rendered by the appellant was valid and sustainable.
• Whether penalties imposed on the appellant for alleged non-compliance with service tax provisions were justified.
• Whether the authorities below were justified in passing orders during the pendency of appeal before the Tribunal, particularly in remand proceedings.
• Whether the principle of judicial discipline and finality of orders was adhered to by the revenue authorities in continuing proceedings on issues already decided by the Tribunal.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Service Tax Demand on Port Services, Cargo Handling Services, and GTA Services

Relevant legal framework and precedents: The service tax provisions applicable to port services, cargo handling services, and GTA services were under scrutiny. The Tribunal had earlier adjudicated on these services in the same matter, notably in Final Order No. 42177/2018 dated 26.7.2018, which had set aside the demand relating to port services but upheld the demands on cargo handling and GTA services. The appellant had also paid the service tax on cargo handling and GTA services as per submissions.

Court's interpretation and reasoning: The Tribunal reaffirmed its earlier decision that the demand for service tax on port services was not sustainable and thus set aside. It upheld the demand on cargo handling and GTA services, consistent with the previous order. However, the penalties related to these services were set aside in the earlier order.

Key evidence and findings: The appellant had paid service tax on cargo handling and GTA services, and the Tribunal had already set aside penalties imposed on these services. The port services demand was earlier quashed by the Tribunal.

Application of law to facts: The Tribunal applied the principle of finality to its earlier order and recognized that the issues concerning port services had been conclusively decided. The payment of service tax on cargo handling and GTA services by the appellant further diminished the scope of dispute on these services.

Treatment of competing arguments: The appellant argued that since the Tribunal had already decided the issues in the first round of litigation, the subsequent orders confirming demands were untenable. The revenue representative reiterated the validity of the original and appellate orders. The Tribunal favored the appellant's submissions, emphasizing the binding nature of its earlier order.

Conclusions: The Tribunal concluded that the demand for service tax on port services was not sustainable and that the demands on cargo handling and GTA services were already addressed by payment and earlier orders. Hence, no further demand was maintainable.

Issue 2: Justification for Imposition of Penalties

Relevant legal framework and precedents: Penalties under service tax law are imposed for non-compliance or evasion. The Tribunal had earlier set aside penalties on cargo handling and GTA services in its Final Order No. 42177/2018.

Court's interpretation and reasoning: The Tribunal found that penalties imposed on the appellant were not justified, especially since the appellant had complied with tax payment on cargo handling and GTA services and the port services demand was set aside.

Key evidence and findings: The appellant's payment of service tax and the Tribunal's prior order setting aside penalties were key factors.

Application of law to facts: The Tribunal applied the principle that penalties should not be imposed where there is no substantive demand or where the demand has been complied with.

Treatment of competing arguments: The revenue's insistence on penalties was rejected in light of the Tribunal's prior order and the appellant's compliance.

Conclusions: Penalties imposed on the appellant were set aside as unjustified.

Issue 3: Legitimacy of Passing Orders During Pendency of Appeal and Judicial Discipline

Relevant legal framework and precedents: The principle of judicial discipline requires that authorities refrain from taking actions that interfere with or circumvent ongoing appellate proceedings. The doctrine of finality of orders prohibits repeated litigation on the same issue.

Court's interpretation and reasoning: The Tribunal strongly disapproved the original authority's passing of Order in Original No. 21/2011 dated 25.2.2011 during the pendency of the appeal before the Tribunal, which confirmed demands on all three services again. The Tribunal noted this as a "serious disregard to judicial discipline" and cautioned the authorities against recurrence.

Key evidence and findings: The appellant had informed the original authority about the pending appeal before the Tribunal through written submissions, yet the original authority proceeded with fresh demand orders.

Application of law to facts: The Tribunal applied the principle that once an appeal is pending, the authorities should not take fresh action on the same issue. The repeated proceedings amounted to harassment and abuse of process.

Treatment of competing arguments: The revenue did not provide justification for initiating fresh proceedings despite knowledge of the pending appeal. The Tribunal rejected any such justification impliedly by censuring the authorities.

Conclusions: The impugned order passed during the pendency of appeal was set aside as infructuous and the authorities were cautioned against such disregard for judicial discipline.

3. SIGNIFICANT HOLDINGS

The Tribunal made the following crucial legal determinations:

"The authorities below should have refrained from passing an order in the remand proceedings when the issue was under consideration by the Tribunal. We find that this is a serious disregard to judicial discipline."

"The appellants have been subjected to repeated proceedings on the same issue which is decided by the Tribunal in the appellant's own case and in respect of the very same proceedings. The Bench takes serious note of the same and cautions the authorities against any recurrence in this regard."

"The issue being already decided by this Bench vide final order referred above, the impugned proceedings are infructuous as far as merits and consequences are concerned."

Core principles established include:

• The finality of orders passed by the Tribunal must be respected by revenue authorities, and repeated proceedings on the same issue are impermissible.
• Judicial discipline mandates that authorities should not pass fresh orders on issues pending adjudication before an appellate forum.
• Penalties cannot be imposed where demands have been complied with or set aside by the Tribunal.

Final determinations were:

• The demand for service tax on port services was set aside.
• The demand on cargo handling and GTA services was upheld but was already complied with by the appellant.
• Penalties imposed on the appellant were set aside.
• The impugned order passed during pendency of appeal was set aside as

Regarding the first issue, the Tribunal examined the statutory definitions under Section 65(11) and Section 65(45) of the Finance Act, which incorporate meanings assigned in Sections 45A and 45-I of the Reserve Bank of India Act, 1934. The Court noted that to qualify as a banking company or financial institution, an entity must be recognized and licensed by the Reserve Bank of India (RBI). The Department failed to produce evidence that the appellant held any such license or recognition. Consequently, for the period prior to 30.06.2012, when Service Tax demands had to be linked to specific service categories, the appellant did not fall within the ambit of banking or financial services. The Tribunal thus set aside the demand for this period on merits, emphasizing the necessity of RBI recognition to attract such Service Tax liability.

On the second and third issues, the appellant contended that as a non-profit women's welfare society, the fees collected were used solely for running the society and any surplus was reinvested, negating a commercial or profit-making character. However, the Tribunal focused on the nature of the services rendered rather than the profit motive. The Department's verification of records established that the appellant charged various fees related to loan facilitation. Post 1.7.2012, the Service Tax regime shifted to a broader levy under Section 66B, where any consideration received for the provision of any service is taxable unless specifically exempted under the Negative List or notifications. The non-profit status did not exempt the appellant from tax liability on these fees, as the fees constituted consideration for service.

The fourth issue involved the interpretation of the definition of "interest" under Section 66B(30) of the Finance Act. The appellant argued that all charges, including admission and other fees, should be exempt as "interest." The Tribunal clarified that the exemption applies strictly to "interest payable in respect of moneys borrowed or debt incurred," excluding any service fee or other charges associated with the loan or credit facility. Therefore, fees like admission fee and consultancy fee do not qualify as interest and remain taxable. The Tribunal affirmed the Service Tax demand for the period 1.7.2012 to 31.3.2013 accordingly.

Regarding limitation and penalty, the Tribunal observed that the demand for the later period was within the normal limitation period, thus rejecting the appellant's plea for setting aside the demand on time-bar grounds. However, considering the substantial portion of the demand (2008-09 to 30.06.2012) was set aside on merits, and the issue primarily involved interpretation rather than deliberate evasion, the Tribunal found no case of suppression or fraud. Consequently, it set aside the penalties imposed on the appellant while confirming the interest liability under Section 75 of the Finance Act, 1994.

In conclusion, the Tribunal held that the appellant was not liable to pay Service Tax on the fees collected for the period 2008-09 to 30.06.2012 due to the absence of RBI recognition as a banking or financial institution. For the period post 1.7.2012, the appellant was liable to pay Service Tax on all fees charged except interest, which is exempt. The penalties were quashed due to lack of suppression, though interest was upheld. The appeal was allowed partly on these terms.

Significant holdings include the Tribunal's interpretation that "banking company" and "financial institution" status under Service Tax law is strictly tied to RBI recognition and licensing, and absent such recognition, Service Tax demands under banking and financial services cannot be sustained. The Tribunal emphasized the distinction between "interest" and other service charges, clarifying that only the former is exempt post 1.7.2012. The ruling also established that non-profit status does not per se exempt an entity from Service Tax liability if it provides taxable services for consideration. Finally, the Tribunal underscored the necessity of evidence for suppression before imposing penalties, setting aside penalties where the issue was one of interpretation rather than concealment.

1. Whether the appellant is entitled to interest on the refund amount from the date of initial deposit of the disputed duty till the date of actual refund, or only for the statutory period of 15 days as held by the Commissioner (Appeals).

2. The applicability and interpretation of Sections 11B and 11BB of the Central Excise Act, 1944, regarding the grant of interest on delayed refunds.

3. The distinction between deposits made under protest or as pre-deposits during appeals and refund claims under the statutory provisions.

4. The effect of judicial precedents, including recent decisions of the Supreme Court and High Courts, on the entitlement to interest on refunds in such cases.

Issue-wise Detailed Analysis

Issue 1: Entitlement to Interest from Date of Deposit vs. Date of Refund Application

The appellant contended that since the amount of Rs. 3,78,279/- was deposited under protest as per the Supreme Court's interim order and was never actually payable, they are entitled to interest from the date of deposit till the refund is made. The appellant argued that the department enjoyed the amount for over a decade and interest is compensatory in nature, thus justifying the claim.

The department countered that the refund application was filed under Section 11B of the Central Excise Act, 1944, and interest on delayed refunds is governed strictly by Section 11BB. The department emphasized that interest is payable only if the refund is not granted within three months from the date of receipt of the refund application, and not from the date of deposit. The department relied on authoritative Supreme Court decisions to support this position.

The Tribunal referred extensively to a recent Division Bench decision of the Tribunal in M/s Crystal Crop Protection Ltd vs. Commissioner of CGST, Jammu, which rejected claims for interest from the date of deposit. The Tribunal also relied on the judgment of the Delhi High Court in Goldy Engineering Works, which was affirmed by the Supreme Court. This judgment clarified that interest on delayed refunds is payable only from the date of receipt of a formal refund application under Section 11B, not from the date of deposit made under protest or as a pre-deposit during appeals.

The Tribunal highlighted the distinction between deposits made under protest or as pre-deposits under Section 35F and refund claims under Section 11B. Section 11B requires a formal refund application and governs interest under Section 11BB, which fixes interest only if refund is delayed beyond three months from the date of application receipt. Section 35FF, dealing with pre-deposits during appeals, mandates interest from the date of the appellate order but does not require a refund application.

The Tribunal further noted that the appellant's deposit was made pursuant to the Supreme Court's direction and not as a pre-condition for filing an appeal under Section 35F. Therefore, the refund claim falls under Section 11B and interest entitlement must be governed by Section 11BB.

The Tribunal also emphasized the policy rationale that a refund claim is distinct from a pre-deposit and requires a formal application with a declaration that the tax burden has not been passed on, to avoid unjust enrichment. Mere pendency of appeal or stay orders does not negate the requirement of a refund application under Section 11B.

Issue 2: Interpretation of Sections 11B and 11BB of the Central Excise Act, 1944

Section 11B(1) mandates that any person claiming refund of duty must make a formal application. Section 11BB prescribes that interest is payable if the refund is not granted within three months from the date of receipt of such application. The interest rate is fixed by the Central Government notification.

The Tribunal relied on the authoritative interpretation by the Delhi High Court and Supreme Court that these provisions are exhaustive and exclusive regarding interest on refunds of duty. Interest cannot be claimed from the date of deposit unless it falls under Section 35FF (pre-deposits during appeals), which is not applicable here.

The Tribunal also referred to the judgment of the Punjab & Haryana High Court in Bata India Ltd, which held that interest is payable only after expiry of three months from the date refund becomes due under the relevant statutory provisions. This further supports the position that interest is not payable from the date of deposit but only from the date of application and subsequent delay.

Issue 3: Distinction Between Deposit Under Protest and Pre-deposit During Appeal

The appellant argued that the amount was deposited under protest and hence should be treated differently from pre-deposits under Section 35F. The Tribunal agreed that there is a clear legal distinction. Deposits made as a pre-condition for filing an appeal under Section 35F are not considered "duty" and attract interest under Section 35FF from the date of the appellate order. Conversely, deposits made under protest pursuant to a court order do not fall under Section 35FF.

The Tribunal underscored that refund claims arising from deposits under protest must comply with Section 11B and interest is governed by Section 11BB, which requires a refund application and interest is payable only if refund is delayed beyond three months from the date of application receipt.

This distinction was supported by the Board's Circular and judicial precedents, which clarify that a deposit under protest or pursuant to a court order is distinct from a pre-deposit under Section 35F and the legal consequences differ accordingly.

Issue 4: Effect of Judicial Precedents

The Tribunal extensively relied on the following precedents:

• Ranbaxy Laboratories Ltd vs. UOI
• UOI vs. Willowood Chemicals Pvt Ltd
• Commissioner of Income Tax, Gujarat vs. Gujarat Fluoro Chemicals
• UOI vs. Cosmo Films Limited
• Goldy Engineering Works (Delhi High Court), affirmed by Supreme Court
• Crystal Crop Protection Ltd vs. Commissioner of CGST (Tribunal Division Bench)
• Bata India Ltd vs. CCE (Punjab & Haryana High Court)

These decisions collectively establish that interest on delayed refunds is strictly governed by Sections 11B and 11BB of the Central Excise Act, 1944, and interest entitlement arises only if refund is delayed beyond three months from the date of receipt of a formal refund application. Deposits made under protest or as pre-deposits during appeals are treated differently under the law, with interest provisions under Section 35FF applicable only to pre-deposits.

The Tribunal noted that the Supreme Court has affirmed the Delhi High Court's ruling in Goldy Engineering Works, making the interpretation the law of the land and settling the controversy regarding the timing of interest entitlement on refunds.

Conclusions

The Tribunal concluded that the appellant is not entitled to interest on the refund amount from the date of deposit till the date of refund. Interest is payable only if the refund is delayed beyond three months from the date of receipt of the refund application under Section 11B, as prescribed by Section 11BB. The appellant's claim for interest from the date of deposit is not sustainable in law.

The impugned order passed by the Commissioner (Appeals), which restricted interest entitlement to 15 days only and denied interest from the date of deposit, is upheld. The appeal is dismissed accordingly.

Significant Holdings

The Tribunal reproduced and relied on the following crucial legal reasoning from the Goldy Engineering Works judgment, affirmed by the Supreme Court:

"Section 11B(1) in clear and unambiguous terms contemplates the making of an application for refund being made by any person claiming refund of any duty of excise and interest paid on such duty... The subject of interest on delayed refund which is governed by Section 11BB itself prescribes the starting point for payment of interest on delayed refunds to be the date when an application under Section 11B(1) is received... interest on delayed refund is clearly dependent upon the making of a formal application as stipulated by Section 11B of the 1944 Act."

"A refund of duty and interest paid thereon is liable to be viewed as distinct from a pre-deposit that may be made in compliance with Section 35F of the 1944 Act... a pre-deposit made as a condition of filing an appeal is in any case not considered to be 'duty' even by the respondents."

"Section 35FF... stipulates that interest would commence from the date of the order of the Appellate Authority as distinct from the making of an application which is prescribed to be the starting point insofar as Section 11BB of the 1944 Act is concerned."

"Absent a declaration that the burden of tax has not been passed on, any refund that may be made would itself amount to the assessee being unjustly enriched... This too appears to reinforce the imperatives of an application being formally made before a claim for refund is considered."

"A levy of interest on refund must undoubtedly follow where it is found that the amount has been unjustifiably retained or remitted with undue delay... The solitary question which stands raised in these matters is the date from which that interest would flow."

Core principles established include:

• Interest on delayed refunds under Central Excise law is payable only if refund is delayed beyond three months from the date of receipt of a formal refund application under Section 11B.
• Deposits made under protest pursuant to court orders are distinct from pre-deposits under Section 35F and attract interest provisions under Section 11BB, not Section 35FF.
• Refund claims require formal applications with declarations to avoid unjust enrichment.
• The timing of interest entitlement is governed by statutory provisions and judicially settled interpretations, not by the date of deposit alone.

The Tribunal's final determination was to dismiss the appellant's appeal and uphold the impugned order denying interest from the date of deposit, thereby confirming that interest is payable only as per the statutory provisions from the date of refund application receipt and subsequent delay.

1. Whether the demand for central excise duty on alleged clandestine removal of iron and steel scrap by the appellant can be sustained based solely on discrepancies between the Annual Statistics Report (ASR) and the RT-12 returns filed by the appellant.

2. Whether the Department discharged the onus of proving clandestine manufacture and removal through positive and tangible evidence beyond mere inferences or assumptions.

3. Whether the invocation of the extended period of limitation and imposition of penalty under Section 11AC of the Central Excise Act, 1944, is justified in the facts of the case.

Issue-wise Detailed Analysis:

1. Legitimacy of Demand Based on Discrepancies Between ASR and RT-12 Returns

The legal framework requires that any demand for excise duty on alleged clandestine removal must be supported by positive evidence of such removal. The ASR is a private document compiled by the appellant's Statistics Department for internal management purposes, whereas RT-12 returns are statutory documents prepared as per tariff head-wise groupings for excise compliance.

The Court observed that the method of compilation of ASR is entirely different from that of RT-12 returns, and hence, discrepancies between these two documents cannot form a valid basis for alleging clandestine clearance. The appellant's contention that ASR data is unsuitable for excise demand purposes was accepted, aligning with precedents where internal or managerial records cannot substitute statutory compliance documents.

Several precedents were cited by the appellant, including Tribunal decisions and a High Court dismissal of Revenue's appeal, establishing that mere differences in internal statistics and statutory returns do not constitute clandestine removal.

The Court emphasized that reliance solely on managerial records without corroborative evidence is insufficient to sustain a demand.

2. Onus and Standard of Proof for Clandestine Manufacture and Removal

The Court reiterated the settled principle that the Department bears the onus to prove clandestine manufacture and removal by positive, tangible, and legally admissible evidence. The standard of proof is beyond reasonable doubt, not merely a preponderance of probabilities or circumstantial inferences.

The appellant pointed out absence of any evidence such as excess raw material movement, increased consumption of utilities (electricity, water), unexplained cash flows, or statements from alleged recipients of unaccounted goods. The quantity alleged to have been clandestinely removed was substantial (over 20.41 lakh MT across four years), yet no evidence was produced demonstrating how, to whom, or by what means such goods were removed or payments received.

The Court noted that the Show Cause Notice and impugned order failed to disclose any material evidencing excess inputs or outputs, or any corroborative evidence such as statements from buyers or suppliers, transportation records, or financial transactions linked to the alleged clandestine removal.

Reliance was placed on authoritative Tribunal and High Court decisions which laid down specific criteria for establishing clandestine manufacture and clearance. These include:

• Tangible evidence of excess raw materials beyond statutory records;
• Instances of actual removal of unaccounted finished goods without duty payment;
• Discovery of such goods outside factory premises;
• Sales to identified parties and receipt of sale proceeds;
• Excessive use of utilities;
• Statements of buyers or transportation proofs;
• Links between recovered documents and factory activities.

The Court quoted extensively from a leading Tribunal decision which underscored that mere inferences or assumptions, or reliance on private/internal records, cannot sustain a finding of clandestine removal. The absence of any of these evidentiary elements in the present case led the Court to conclude that the Department failed to discharge its burden.

Further, the Court referred to a recent decision of the Tribunal in the appellant's own case for a different unit, which held that even if stock discrepancies exist, duty can be demanded only when clandestine removal from the factory is proved. The present case lacked any such proof.

3. Extended Period of Limitation and Penalty under Section 11AC

The Department invoked the extended period of limitation and imposed penalty on the basis of alleged suppression of facts by the appellant. The appellant contended that the ASRs were regularly submitted to the jurisdictional authorities and that the Department was aware of the issue, having raised demands for earlier years on similar grounds.

The Court observed that since the Department had knowledge of the ASRs and related data, no suppression or concealment by the appellant could be alleged. Consequently, invocation of the extended period of limitation was unjustified. Similarly, the penalty under Section 11AC was held unsustainable for the same reason.

Treatment of Competing Arguments

The Revenue relied on the impugned order confirming the demand based on the ASR-RT12 discrepancy. The Court critically examined this reliance and found it legally untenable. The Department's failure to produce any corroborative evidence or to establish clandestine removal beyond statistical differences led to rejection of their contentions.

The appellant's detailed submissions, supported by binding precedents, were accepted as correctly stating the law and facts. The Court gave due weight to the principle that benefit of doubt must be given to the assessee in absence of positive evidence.

Significant Holdings

The Court held:

"We observe that the data available in the ASR cannot be the basis to allege clandestine clearance and demanding duty on such clandestinely cleared goods."

"The Department is required to establish clandestine manufacture and removal through positive and tangible legal evidence. Clandestine clearance cannot be alleged merely on the basis of preponderance of probabilities or by way of inferences drawn based on calculations and alleged circumstantial evidence based on assumptions, presumptions and inferences."

"In the absence of any such corroborative evidence establishing manufacturing and clandestine clearance of scrap by the appellant, we hold that the allegation of clandestine removal of goods against the appellant cannot be sustained."

"The Department was very well aware of the issue and no suppression can be alleged on the part of the appellant. Hence, we hold that extended period of limitation cannot be invoked in this case. For the same reason, we hold that the penalty imposed on the appellant under Section 11AC of the Central Excise Act, 1944 is not sustainable."

The Court conclusively set aside the impugned order confirming the demand, interest, and penalty, allowing the appeal with consequential relief.

The core legal questions considered in this appeal are:

• Whether the products such as waxes, gums, and fatty acids arising during the manufacture of refined oil, vanaspati ghee, and fatty acid qualify as 'waste' under Notification No. 89/1995-CE dated 18.05.1995 and are thus exempt from Central Excise duty.
• Whether the impugned order denying exemption and imposing Central Excise duty, interest, and penalty on these products was legally sustainable.
• The applicability of precedents, particularly the Larger Bench decision in M/s Ricela Health Foods Ltd. and subsequent decisions by this Tribunal, in determining the eligibility for exemption under the said Notification.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Eligibility of exemption under Notification No. 89/1995-CE for waxes, gums, and fatty acids arising during manufacture

Relevant legal framework and precedents:

The primary legal instrument under consideration is Notification No. 89/1995-CE dated 18.05.1995, which exempts "waste, parings and scrap arising in the course of manufacture of exempted goods and falling within the schedule to the Central Excise Tariff Act, 1985" from Central Excise duty. The Central Excise Act, 1944 and Central Excise Rules, 2002 provide the procedural framework for imposition and recovery of duty, interest, and penalties.

Key precedents include the Larger Bench decision of the Tribunal in M/s Ricela Health Foods Ltd. Vs. CCE, Chandigarh, Allahbad (Interim Order dated 30.01.2018), which examined the nature of wax, gums, and fatty acids arising during vegetable oil refining and held these to be 'waste' eligible for exemption under the Notification. Another relevant decision is the Final Order dated 21.12.2023 by the CESTAT Chandigarh in Dhillon Oil and Fats Pvt. Ltd., which relied on the Ricela Larger Bench ruling to uphold exemption.

Court's interpretation and reasoning:

The Tribunal, after hearing submissions and perusing records, found that the products in question-wax, gums, and fatty acids-are by-products arising during the extraction and refining process of vegetable oils. Despite having distinct names and market value, these products are considered 'waste' within the meaning of the Notification. The Tribunal emphasized that the Larger Bench in Ricela Health Foods Ltd. had thoroughly examined the issue and concluded that such by-products cannot be treated as separate dutiable goods but fall within the ambit of waste exempted under Notification No. 89/1995-CE.

Key evidence and findings:

The appellant was engaged in manufacturing refined oil, vanaspati ghee, and fatty acid and cleared by-products like waxes, gums, and soap stocks at Nil rate of duty, claiming them as 'waste'. The revenue disputed this classification, issuing show cause notices demanding duty, interest, and penalties. The adjudicating authority confirmed the demand, but the Commissioner (Appeals) partly allowed the appeal by granting benefit-cum-duty price and setting aside penalties, though confirming demand and interest. The Tribunal relied heavily on the Larger Bench ruling in Ricela and the subsequent consistent decision in Dhillon Oil and Fats Pvt. Ltd., both of which recognized these by-products as exempt waste.

Application of law to facts:

The Tribunal applied the legal principle established by the Larger Bench that the by-products generated during the manufacture of exempted goods qualify as waste and are thus exempt under Notification No. 89/1995-CE. Despite the products having market value and distinct identity, the Tribunal held that such characteristics do not disqualify them from being treated as waste. Consequently, the demand for Central Excise duty and penalties on these by-products was not sustainable.

Treatment of competing arguments:

The revenue contended that these by-products are distinct marketable goods and therefore liable to duty. However, this argument was rejected on the basis of authoritative precedents which clarified that the exemption applies to waste arising in the manufacture of exempted goods, regardless of marketability or distinct nomenclature. The Tribunal noted that the issue is no longer res integra and that the Larger Bench decision has settled the question in favor of the appellant.

Conclusions:

The Tribunal concluded that the impugned order denying exemption under Notification No. 89/1995-CE was unsustainable. The waxes, gums, and fatty acids arising during the manufacture of refined oil and related products are to be treated as waste and exempt from Central Excise duty. Therefore, the appeal was allowed, setting aside the demand and penalties with consequential relief as per law.

3. SIGNIFICANT HOLDINGS

The Tribunal held:

"...the Larger Bench of the Tribunal in the case of M/s Ricela Health Foods Ltd. has discussed the issue at length and came to the conclusion that the wax, gums and fatty acids emerging in the process of refining of vegetable oils cannot be considered anything other than waste and as such, the exemption contained under the Notification No.89/95-CE is available to the appellants."

Core principles established include:

• By-products such as wax, gums, and fatty acids arising in the manufacture of exempted goods qualify as 'waste' under Notification No. 89/1995-CE and are exempt from Central Excise duty.
• The marketability or distinct identity of such by-products does not negate their status as exempt waste.
• Precedents of the Larger Bench and subsequent Tribunal decisions are binding and conclusively settle the issue.

Final determinations on each issue:

• The products in question are exempt from Central Excise duty under Notification No. 89/1995-CE.
• The demand for duty, interest, and penalties imposed by the adjudicating authority and Commissioner (Appeals) was not sustainable.
• The appeal is allowed, and the impugned order is set aside with consequential relief.

The core legal questions considered by the Tribunal were:

(a) Whether the amount of VAT/Sales Tax remission or incentive retained by the appellant under the State VAT scheme is includible in the assessable value for the purpose of levy of Central Excise duty under Section 4 of the Central Excise Act, 1944;

(b) Whether the Show Cause Notices (SCNs) issued for recovery of differential excise duty including the extended period demands are valid and sustainable, particularly examining the applicability of limitation and the suppression of facts clause;

(c) Whether the Circular issued by the Central Board of Excise and Customs (CBEC) dated 17.09.2014 and the Supreme Court judgment dated 28.02.2014 in the case of Commissioner of Central Excise, Jaipur-II vs M/s Super Synotex (India) Ltd. could be applied retrospectively to the appellant's case;

(d) Whether penalties and interest imposed along with the duty demand are justified.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Inclusion of VAT remission/incentive in Assessable Value

Relevant legal framework and precedents: The principal statutory provision under consideration was Section 4 of the Central Excise Act, 1944, which governs the determination of assessable value for excise duty. The Supreme Court judgment in Commissioner of Central Excise, Jaipur vs M/s Super Synotex (India) Ltd. & Ors (2014) 301 ELT 273 (SC) was the pivotal precedent. This judgment held that incentives granted by way of VAT remission by the State Government, which are retained by the manufacturer and not paid to the State exchequer, constitute additional consideration and must be included in the assessable value for excise duty.

Court's interpretation and reasoning: The Tribunal noted that the appellant, while charging 100% VAT on customers, retained 99% of the VAT under the State's remission scheme and paid only 1% to the State Government. Since there was no evidence that the retained amount was payable subsequently, the Tribunal concurred with the Supreme Court's view that the retained VAT remission is effectively a price benefit and forms part of the transaction value.

Key evidence and findings: The undisputed fact was the retention of 99% VAT remission by the appellant. The Tribunal observed that the appellant did not pay this amount to the State Government and thus it was not a mere subsidy but an additional consideration for the goods sold.

Application of law to facts: Applying the Supreme Court's ratio, the Tribunal held that the retained VAT remission must be added to the assessable value under Section 4(4)(d) of the Central Excise Act. The appellant's reliance on case laws holding the contrary was rejected because those cases either did not consider the Supreme Court ruling or dealt with situations where VAT was paid subsequently.

Treatment of competing arguments: The appellant argued that the remission was a subsidy for capital investment and not additional consideration, relying on various tribunal decisions. However, the Tribunal distinguished these on facts and legal grounds, emphasizing the binding Supreme Court precedent.

Conclusion: The Tribunal conclusively held that the VAT remission retained by the appellant is includible in the assessable value for excise duty.

Issue (b): Validity of Show Cause Notices and Limitation

Relevant legal framework and precedents: The limitation period for issuing demand notices under the Central Excise Act and the conditions under which extended period demands can be sustained, particularly suppression of facts or willful misstatement, were examined. The Tribunal relied on the recent Final Order in Jalshakti Plastics Industries vs Commissioner (Appeals), CGST & Central Excise (2023), which held that extended period demands are not sustainable where there was no suppression of facts.

Court's interpretation and reasoning: The Tribunal observed that the appellant had not suppressed any information from the department. Earlier Tribunal decisions had favored the appellant's position, and the Supreme Court's ruling came subsequently. Therefore, the appellant could not be faulted for non-inclusion of the VAT remission in assessable value prior to the Supreme Court's decision.

Key evidence and findings: The absence of any concealment or suppression by the appellant was a key factual finding. The appellant had acted in accordance with the then-prevailing legal position.

Application of law to facts: The Tribunal applied the principle that extended period demands require suppression or fraud. Since none was found, demands for the extended period were set aside.

Treatment of competing arguments: The Revenue argued for sustaining the extended period demands, but the Tribunal rejected this on the basis of lack of suppression and settled legal principles.

Conclusion: The Tribunal upheld the excise duty demand for the normal period of limitation but set aside the demand for the extended period.

Issue (c): Retrospective application of Supreme Court judgment and CBEC Circular

Relevant legal framework and precedents: The appellant contended that the Supreme Court judgment dated 28.02.2014 and the CBEC Circular dated 17.09.2014 could not be applied retrospectively and that reliance on the Circular caused denial of natural justice.

Court's interpretation and reasoning: The Tribunal did not find merit in the appellant's submission. It noted that the Supreme Court judgment is binding and applies to all relevant periods unless specifically excluded. The Circular merely provided instructions in light of the Supreme Court ruling and did not infringe principles of natural justice.

Key evidence and findings: The Tribunal observed that the appellant's case was adjudicated post the Supreme Court ruling and Circular, and the appellant had the opportunity to present arguments.

Application of law to facts: The Tribunal applied the Supreme Court judgment to the appellant's case and found no procedural irregularity or denial of natural justice.

Treatment of competing arguments: The appellant's argument on non-retrospective application was rejected as the judgment clarified the law applicable to the period in question.

Conclusion: The Supreme Court judgment and the CBEC Circular were rightly applied in the adjudication process.

Issue (d): Penalty and Interest

Relevant legal framework and precedents: Penalties under the Central Excise Act are contingent upon the existence of culpable conduct such as suppression or fraud. Interest is payable on confirmed duty demands for delayed payment.

Court's interpretation and reasoning: Since the Tribunal found no suppression or concealment by the appellant, penalties were not justified. However, interest on the differential duty for the normal period was upheld as per statutory provisions.

Key evidence and findings: Absence of any fraudulent intent or suppression was critical to the penalty decision.

Application of law to facts: Penalties were set aside, but interest was confirmed.

Conclusion: Penalties were quashed; interest on confirmed duty was upheld.

3. SIGNIFICANT HOLDINGS

"Unless the sales tax is actually paid to the Sales Tax Department of the State Government, no benefit towards excise duty can be given under the concept of 'transaction value' under Section 4(4)(d), for it is not excludible. As is seen from the facts, 25% of the sales tax collected has been paid to the State exchequer by way of deposit. The rest of the amount has been retained by the assessee. That has to be treated as the price of the goods under the basic fundamental conception of 'transaction value' as substituted with effect from 1.7.2000. Therefore, the assessee is bound to pay the excise duty on the said sum after the amended provision had brought on the statute book."

Core principles established include:

- VAT remission or incentive retained by the manufacturer and not paid to the State Government must be included in the assessable value for excise duty.

- Extended period demands under the Central Excise Act require suppression or fraud; absence thereof renders such demands unsustainable.

- Penalties are not leviable in the absence of suppression or willful misstatement.

- Supreme Court judgments clarifying the law are applicable to pending cases and cannot be denied retrospective effect where applicable.

Final determinations:

- The demand of Central Excise duty including the VAT remission retained by the appellant is upheld for the normal period of limitation along with interest;

- The demand for the extended period is set aside due to lack of suppression;

- All penalties imposed are quashed.

1. Whether the price fixed under the Memorandum of Understanding (MoU) among Oil Marketing Companies (OMCs), based on Import Parity Price (IPP), can be adopted as the transaction value for levy of excise duty under Section 4(1)(a) of the Central Excise Act, 1944, given that the price is not the sole consideration for sale.

2. Whether Rule 4 or Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 is applicable for determining the assessable value of petroleum products sold by the appellant to other OMCs.

3. Whether the demand for differential excise duty, calculated by adopting the dealer sale price instead of IPP, is sustainable.

4. Whether the interest and penalty imposed on the appellant are sustainable in light of the valuation dispute and prior judicial and administrative clarifications.

5. Whether the appellant had received any additional consideration over and above the IPP, which would attract valuation under Rule 6.

Issue-wise Detailed Analysis

Issue 1: Adoption of MoU Price (IPP) as Transaction Value under Section 4(1)(a)

The legal framework involves Section 4(1)(a) of the Central Excise Act, which prescribes that where goods are sold by the assessee to an unrelated buyer and price is the sole consideration, the transaction value shall be the assessable value. The MoU fixed the sale price among OMCs based on IPP, although the goods were manufactured indigenously.

The Supreme Court held that the price fixed under the MoU cannot be taken as transaction value because the price was not the sole consideration for sale. The arrangement ensured uninterrupted supply of petroleum products among OMCs, which was an additional consideration beyond mere price. The Court emphasized that the MoU's real consideration was supply continuity, not just price.

The appellant contended that the transaction qualifies as a sale under Section 2(h) of the Central Excise Act, which defines sale as transfer of possession for cash or other valuable consideration. The Court agreed that a sale took place but rejected the adoption of the MoU price as the sole consideration.

Issue 2: Applicability of Rule 4 vs. Rule 6 of Valuation Rules, 2000

Rule 4 applies where there is no sale or no price per se, and the value is determined by reference to the price of goods sold at a time nearest to removal. Rule 6 applies where goods are sold but price is not the sole consideration, and the assessable value is the transaction value plus the money value of any additional consideration flowing from the buyer.

The SCN and impugned order invoked Rule 4 to determine the assessable value by adopting dealer sale price as the value for goods sold to OMCs. The appellant argued that Rule 4 is inapplicable because the Supreme Court held price is not the sole consideration, thus Rule 6 should apply.

The Tribunal noted that Rule 6 was not invoked in the SCN or the original order, which is fatal to the demand, as the show cause notice is the foundation for levy and cannot be expanded post-facto. Precedents were cited where new grounds or valuation rules not mentioned in the SCN were held not invocable.

On merits, the appellant submitted that no additional consideration in monetary terms was received, making Rule 6 inapplicable. Further, the additional consideration of uninterrupted supply is abstract and cannot be quantified monetarily, as per Explanation 1 and proviso to Rule 6. The Tribunal accepted that without quantifiable additional consideration, Rule 6 valuation fails.

Issue 3: Sustainability of Demand Based on Dealer Price

The Revenue sought to impose duty on the difference between dealer price and IPP for the period 01.11.2006 to 15.03.2007. The appellant demonstrated that over the entire financial year 2006-07, there were months when IPP exceeded dealer price, resulting in excess duty paid overall.

Tribunal relied on precedents holding that when valuation is done on annual average costing (CAS-4), the net duty liability must consider both excess and short payments over the year. Selective demand for only months with short payment is not sustainable.

Data submitted showed the appellant paid excess duty exceeding the demand amount, thus negating any shortfall. The Tribunal held the demand unsustainable on this basis.

Issue 4: Interest and Penalty Liability

The Supreme Court had held that extended period of limitation and penalty under Section 11AC were not invocable as Revenue was aware of the MoU. The appellant argued interest liability should commence only from the Supreme Court's remand order date (20.01.2025), relying on prior Supreme Court rulings where bona fide reliance on settled law precluded earlier interest.

The Tribunal accepted that prior to the Supreme Court's remand order, the valuation issue was settled in favor of the appellant by Board instructions, Ministry of Finance responses, and Supreme Court rulings. Hence, no interest or penalty is sustainable for the earlier period.

Issue 5: Receipt of Additional Consideration

The appellant filed an affidavit stating no additional monetary or non-monetary consideration was received from OMCs beyond the IPP. Revenue did not allege otherwise in the SCN. The Tribunal found this undisputed and critical in ruling that Rule 6 valuation cannot be applied as there is no flowback of additional consideration.

Conclusions on Issues

1. The price fixed under the MoU based on IPP is not the sole consideration for sale, thus transaction value under Section 4(1)(a) cannot be adopted.

2. Rule 4 of the Valuation Rules invoked in the SCN is inapplicable per the Supreme Court's findings; Rule 6 is the appropriate provision but was not invoked in the SCN, making the demand unsustainable on procedural grounds.

3. On merits, no additional consideration was received, and the abstract nature of supply continuity consideration precludes quantification under Rule 6, further negating demand validity.

4. Considering the entire financial year, the appellant paid excess duty beyond the demand amount, invalidating selective demand for shortfall.

5. Interest and penalty are not sustainable due to bona fide belief in the correctness of valuation method and prior authoritative clarifications.

Significant Holdings

"By no stretch of the imagination, it can be said that the price fixed under the MOU was the sole consideration for the sale by one OMC to the other. Hence, we concur with the conclusion in the impugned judgment that the price was not the sole consideration for sale."

"Rule 4 of the Valuation Rules is applicable in this case where there is no sale of goods involved and in the absence of any price per se, the price of such goods sold nearest to the time of removal of goods under assessment is to be adopted. ... Where the price is not the sole consideration for sale, Rule 6 of the Valuation Rules is applicable."

"The show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 6 of the Valuation Rules in the show cause notice, it would not be open to the Commissioner to invoke the said rule."

"Where the money value of the additional consideration is not capable of being derived, the valuation mechanism of Rule 6 fails and consequently, the demand has to be set aside."

"When the Department arrived at cost on annual average basis the duty liability, excess or shortage has also to be determined on such basis. Selectively applying the said cost price only for months when the clearances were below such cost price is not legally sustainable."

"As, in whole of the period in question, the appellant has paid excess duty as demanded after adjustment, in view of this, no demand of duty is sustainable against the appellant. Consequently, no interest is payable by the appellant and no penalty is imposable on the appellant."

The Tribunal accordingly set aside the impugned order and allowed the appeal.

- Whether the cash amount recovered from the appellants during the course of investigation can be confiscated on the allegation that it was meant for payment of clandestinely cleared goods by M/s. Jai Balaji Industries Limited (JBIL).

- Whether the penalties imposed on the appellants are sustainable in light of the allegations of clandestine removal of goods.

- The legal effect of the Tribunal's prior decision in the case of M/s. Jai Balaji Industries Limited, where charges of clandestine clearance were dropped.

- The evidentiary basis for linking the appellants to clandestine clearance and the consequent confiscation and penalties.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Confiscation of Cash Recovered from Appellants

Relevant Legal Framework and Precedents: Confiscation of cash or property under central excise law requires a clear nexus between the seized cash and the alleged clandestine removal of goods. The burden lies on the Revenue to prove beyond reasonable doubt that the cash was intended for payment related to such illegal activity.

Court's Interpretation and Reasoning: The Tribunal relied heavily on its earlier decision in the case involving M/s. Jai Balaji Industries Limited, where the charge of clandestine clearance of goods was dropped after detailed examination of evidence. The Tribunal observed that the pink weighment slips, which were purportedly evidence of clandestine clearance from JBIL to the appellants, could not form a basis for such allegations since the clandestine clearance charge itself was not sustained.

Key Evidence and Findings: The investigation revealed pink weighment slips allegedly evidencing receipt of pig iron consignments by the appellants without proper invoices. However, the Tribunal noted that these slips were not conclusively linked to clandestine clearance. Additionally, the appellant no. 2 retracted his statement implicating the cash as payment for clandestine goods. The prior Tribunal ruling found the evidence insufficient to prove clandestine clearance by JBIL.

Application of Law to Facts: Since the foundational charge against JBIL was dropped, the alleged link between the cash recovered from appellants and clandestine clearance was severed. The Tribunal held that without proof of clandestine clearance, confiscation of cash on the basis that it was payment for such goods is unsustainable.

Treatment of Competing Arguments: The Revenue contended that the cash was meant for payment of clandestinely cleared goods, relying on the investigative findings. The appellants argued that the prior Tribunal decision negated the charge and that the cash recovery was not proven to be connected to illegal activity. The Tribunal accepted the appellants' submissions, emphasizing the absence of conclusive evidence.

Conclusion: The cash amount seized from the appellants must be released as confiscation is not justified.

Issue 2: Sustainability of Penalties Imposed on the Appellants

Relevant Legal Framework and Precedents: Penalties under central excise law are imposed based on confirmed violations such as clandestine removal of goods. Penalties cannot be sustained without a proven violation.

Court's Interpretation and Reasoning: Given that the clandestine clearance charges against JBIL were dropped and the evidence against appellants was found insufficient, the Tribunal held that penalties imposed on the appellants cannot be sustained.

Key Evidence and Findings: The Tribunal reviewed the investigative records, including statements and seized documents, and found no substantive evidence linking the appellants to clandestine clearance or illegal payments.

Application of Law to Facts: Penalties imposed on appellants are contingent on proof of wrongdoing. Since the foundational charge was not established, penalties must be set aside.

Treatment of Competing Arguments: The Revenue supported the penalties based on the investigation, while appellants relied on the prior Tribunal ruling and lack of evidence. The Tribunal favored the appellants' position.

Conclusion: No penalty is imposable on the appellants.

Issue 3: Effect of Prior Tribunal Decision on Current Proceedings

Relevant Legal Framework and Precedents: Decisions of the Tribunal on the same facts and parties are binding unless overturned. The principle of res judicata and consistency in adjudication apply.

Court's Interpretation and Reasoning: The Tribunal explicitly referred to the prior ruling in the case involving M/s. Jai Balaji Industries Limited where clandestine clearance charges were dropped after detailed scrutiny of evidence. This prior decision directly impacts the current proceedings against the appellants, as the alleged clandestine clearance was the basis for confiscation and penalties.

Key Evidence and Findings: The prior order analyzed extensive evidence including weighment slips, computer data, statements of weighbridge in-charges, and other documentary evidence, and found the clandestine clearance charge unsubstantiated.

Application of Law to Facts: The Tribunal applied the principle that where the foundational charge is dropped, consequential actions such as confiscation and penalties based on that charge must also fail.

Treatment of Competing Arguments: The appellants relied on the prior decision to challenge the current confiscation and penalties. The Revenue argued for sustaining the order, but the Tribunal gave primacy to the earlier ruling.

Conclusion: The prior decision is binding and leads to the dismissal of the current allegations and sanctions against the appellants.

3. SIGNIFICANT HOLDINGS

- "We find that the pink slips which were recovered during the course of search at the premises of M/s. JBIL cannot be a basis for alleging clandestine clearance by M/s. JBIL to the appellants. As the appellants have not received any goods against the said slips..."

- "The conclusion drawn by the adjudicating authority that the pink slips were only prepared when the goods were cleared without invoices, is not substantiated by any evidence."

- "In view of the above observations made by this Tribunal in the case of M/s. Jai Balaji Industries Ltd. (supra), we hold that the proceedings against the appellants are not sustainable."

- "Consequently, the cash seized during the course of investigation from the premises of the appellant cannot be confiscated and the same is required to be released."

- "We hold that no penalty is imposable on the appellants."

- Final determinations:

a) The cash seized during the course of investigation from the appellants is to be released immediately.

b) No penalty is imposable on the appellants.

(a) Whether the respondent-applicant satisfied the eligibility criteria and was entitled to the promotion to the post of Chief Commissioner of Income Tax (CCIT) for the vacancy year 2008-09;

(b) Whether, if the respondent-applicant was found eligible and entitled to promotion, such promotion could be granted with retrospective effect along with notional benefits.

Regarding the first issue of eligibility and entitlement to promotion, the Court examined the relevant legal framework governing promotions within the Indian Revenue Service. Promotion from Commissioner of Income Tax to CCIT is governed by a selection process that requires the candidate's Annual Confidential Reports (ACRs) for the preceding five years to meet a benchmark rating of 'Very Good' or 'Outstanding'. The assessment involves a Departmental Promotion Committee (DPC) declaring the candidate either 'Fit' or 'Unfit' for promotion based on these ACRs.

The Court relied on settled legal precedents, particularly the authoritative Supreme Court rulings in Dev Dutt v. Union of India and Abhijit Ghosh Dastidar v. Union of India. These decisions establish that every ACR entry, regardless of its nature, must be communicated to the employee within a reasonable time to afford the opportunity to submit a representation against it. Non-communication of an ACR entry is arbitrary and violates Article 14 of the Constitution. Furthermore, an uncommunicated ACR entry cannot be relied upon for assessing suitability for promotion.

In the present case, the ACR for the year 2006-07 was initially not communicated to the respondent-applicant. Following litigation, the Tribunal directed the petitioners to communicate the ACR and allow a representation. The respondent-applicant's representation was considered by the competent authority, who found the performance "at par with the benchmark," but did not formally upgrade the ACR rating from 'Good' to 'Very Good'. Despite the respondent-applicant meeting all departmental targets and consistent past performance, the Review DPC declared him 'Unfit' for promotion on the ground that the ACR did not meet the prescribed benchmark.

The Court analyzed the distinction between "eligibility" and "suitability." Eligibility refers to fulfillment of prescribed objective criteria, whereas suitability involves a holistic evaluation of competence and merit. Although the respondent-applicant was eligible, he was ultimately found unsuitable based on the ACR ratings. The Court rejected the contention that the respondent-applicant was discriminated against, observing that his candidature was duly considered and rejected on merit, not due to any arbitrariness or bias.

The Court also noted that the Tribunal's direction to consider the ACR of 2001-02 instead of 2006-07 was not pleaded by the respondent-applicant and amounted to the Tribunal exceeding its jurisdiction by effectively changing the promotion criteria. The Court distinguished this case from the precedent relied upon by the respondent-applicant where exceptional circumstances justified such consideration.

Regarding the second issue of retrospective promotion, the Court found it unnecessary to adjudicate since the respondent-applicant was not found entitled to promotion on merits. However, the Court referenced the Supreme Court's ruling in Government of West Bengal v. Dr. Amal Satpathi, which clarified that constitutional guarantees under Articles 14 and 16(1) provide a right to be considered for promotion but do not confer a right to the promotion itself. The Court emphasized that promotion becomes effective from the date it is granted and not from the date a vacancy arises.

In addressing competing arguments, the Court considered the petitioners' submission that the promotion rules required all five preceding years' ACRs to meet the benchmark and that the respondent-applicant's 2006-07 ACR was rightly considered. The Court also examined the respondent-applicant's claim of discrimination and arbitrary treatment, including comparison with a colleague who was promoted under similar circumstances. The Court found no merit in these claims, noting that the review process and DPC decisions were conducted in accordance with rules and principles of fairness.

In conclusion, the Court held that:

- The respondent-applicant was eligible but not suitable for promotion as he failed to meet the prescribed benchmark in the relevant ACRs.

- The Tribunal's direction to consider an unrelated ACR year was beyond its jurisdiction and unsustainable.

- The petitioners did not violate any legal or constitutional rights of the respondent-applicant.

- The respondent-applicant's right was to be considered for promotion, not to receive promotion as a matter of right.

- Since the first issue was decided against the respondent-applicant, the question of retrospective promotion did not arise.

The Court accordingly allowed the writ petition, quashing and setting aside the impugned order of the Tribunal dated 30.03.2010.

Significant holdings and core principles established include the following verbatim excerpts:

"Every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision... that arbitrariness violates Article 14 of the Constitution."

"Promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself..."

"The concepts of 'eligibility' and 'suitability' for promotion are distinct and operate on different parameters. While 'eligibility' pertains to the fulfillment of prescribed minimum qualifications or criteria and is an objective determination, 'suitability' entails a more nuanced and holistic evaluation of a candidate's competence, experience, and alignment with the functional requirements of the post."

"The Tribunal exceeded its jurisdiction by directing consideration of the applicant's candidature for promotion on the basis of past records rather than the criteria actually prescribed for promotion."

Final determinations on each issue:

1. The respondent-applicant was not entitled to promotion to the post of CCIT for the vacancy year 2008-09 as he did not meet the prescribed benchmark in the relevant ACRs and was found unsuitable on merit.

2. The Tribunal's order directing consideration of an earlier ACR year was quashed as beyond jurisdiction and unsupported by pleadings.

3. The respondent-applicant's right to be considered for promotion was not infringed, and no discrimination or arbitrariness was established.

4. Since entitlement to promotion was not established, the question of retrospective promotion did not arise.