TaxTMI Updates e-Newsletter
Oct 26,2020

Non-availability of business records - unaccounted goods - Section 35(1) of the Central Goods and Services Tax Act, 2017 - transitional period from old Act to new Act - verification by the designated tax authority

Non-availability of business records - transitional period from old Act to new Act - verification by the designated tax authority - Section 35(1) of the Central Goods and Services Tax Act, 2017 - Petitioner permitted limited time to produce records held at Head Office for verification and report; matter remanded to Additional Commissioner for examination of those documents. - HELD THAT: - The Court accepted petitioner's explanation that during the transitional period from the old Act to the new Act certain records were maintained at the company's Head Office and were therefore not immediately available at the business premises. Rather than adjudicating the merits of any liability under Section 35(1) of the Central Goods and Services Tax Act, 2017, the Court directed a limited factual verification. The petitioner was allowed ten days to produce records bearing the signature of the designated company authority before the Additional Commissioner, Central Excise and GST, Gautam Budh Nagar. The competent authority was directed to examine and verify the submitted documents and prepare a report within one week of submission; the report is to be filed in this Court by way of a supplementary counter affidavit on the next date listed. This direction postpones any final determination on whether the goods are unaccounted under Section 35(1) until the authority's verification is completed.

Petitioner granted ten days to produce Head Office records for verification; Additional Commissioner to verify within one week and file a report by way of supplementary counter affidavit; further listing on 09.11.2020.

Final Conclusion: Instead of deciding liability under Section 35(1), the Court permitted the petitioner a limited opportunity to produce Head Office records and remanded the matter for prompt verification by the Additional Commissioner, with the verification report to be placed on record and the matter listed on the specified date.

Interim relief restraining revenue from giving effect to returns pending rectification - rectification of GSTR-3B / amendment of returns filed on GST portal - input tax credit adjustment due to non-updation of GST web portal under sections 49A & 49B read with Rule 88A - budgetary support scheme 2017 and availability of benefit linked to correct GST head

Interim relief restraining revenue from giving effect to returns pending rectification - rectification of GSTR-3B / amendment of returns filed on GST portal - input tax credit adjustment due to non-updation of GST web portal under sections 49A & 49B read with Rule 88A - budgetary support scheme 2017 and availability of benefit linked to correct GST head - Whether the revenue should be restrained from giving effect to the petitioner's GSTR-3B returns pending rectification applications filed on the GST portal arising from automated/incorrect adjustment of input tax credit. - HELD THAT: - The petitioner filed GSTR-3B returns for the period 01-02-2019 to 30-06-2020 and alleges that, because the GST web portal was not updated as required under the statutory scheme (sections 49A & 49B read with Rule 88A), input tax credit claimed against State GST was automatically adjusted against Central GST. The petitioner contends this prevented it from availing benefits under the budgetary support scheme 2017 which apply to Central GST only, and that rectification requests on the portal have not been permitted by the Department. Having heard rival submissions and on the representation that the respondents will obtain instructions and file affidavit, the Court directed issuance of notice returnable on a specified date and granted interim protection by ordering that the department shall not give effect to the petitioner's GSTR-3B returns while rectification is pending before the authority concerned. The order is interlocutory and limited to preserving the petitioner's position until the next returnable date so that the rectification process can be considered without the returns being given effect in the meantime.

Notice issued returnable by 24-11-2020; until the returnable date the department is restrained from giving effect to the petitioner's GSTR-3B returns for which rectification is pending.

Final Conclusion: Writ petition issued notice and interim protection granted: respondents directed to obtain instructions and file affidavit; department restrained from giving effect to the petitioner's GSTR-3B returns pending consideration of the petitioner's rectification requests, returnable on 24-11-2020.

Provisional attachment under Section 83(2) of the CGST Act, 2017 - continuation of provisional attachment beyond one year - provisional attachment ceasing on expiry of statutory period - violation of Article 14 - violation of Article 19(1)(g) - violation of Article 300A

Provisional attachment under Section 83(2) of the CGST Act, 2017 - continuation of provisional attachment beyond one year - violation of Article 14 - violation of Article 19(1)(g) - violation of Article 300A - Continuation of the provisional attachment dated 07.06.2019 beyond one year is unlawful and must cease; the bank account shall be unfrozen enabling operation of the account. - HELD THAT: - The writ petition challenged the continued operation of a provisional attachment order dated 07.06.2019 which, by virtue of the sunset clause in sub-Section (2) of Section 83 of the CGST Act, 2017, cannot continue beyond one year from its date. The court accepted that the attachment could not lawfully remain in force after 06.06.2020 and held that any continuation beyond the statutory one-year period would be without jurisdiction. Further, continuation of the attachment past the statutory period was held to infringe the petitioners' constitutional rights under Articles 14, 19(1)(g) and 300A. The court therefore directed that the bank (the 5th respondent) allow the petitioner to operate the specified current account forthwith. The court noted submissions that a fresh provisional order could be issued but did not uphold any continuation of the existing order beyond the statutory period. [Paras 7, 8, 9]

The provisional attachment dated 07.06.2019 cannot continue after 06.06.2020; the bank is directed to permit operation of the petitioner's account forthwith.

Final Conclusion: Writ petition allowed: the provisional attachment dated 07.06.2019 cannot subsist beyond one year under sub-Section (2) of Section 83 of the CGST Act, 2017; the bank is directed to restore operation of the petitioner's current account immediately.

Garnishee Notice - stay of execution - appeal period under Section 117 of the Central Goods and Services Tax Act, 2017 - attachment of bank funds - deposit as condition for interim relief

Garnishee Notice - stay of execution - deposit as condition for interim relief - Interim relief in respect of the Garnishee Notice dated 26.8.2020 and attendant attachment of funds for the specified tax periods. - HELD THAT: - The Court noted that Garnishee Notices were issued before the expiry of the period permitted for filing an appeal under the appeal regime, and that attachment notices for the periods January, 2020 to June, 2020 and January, 2019 to December, 2019 had been issued even prior to the expiry of the appeal time. On a prima facie reading of the record the execution of the Garnishee Notice seeking attachment of funds aggregating to a large sum appeared excessive. By consent of the parties the impugned order dated 26.8.2020 is stayed on interim terms. The stay is made conditional on the petitioner depositing a specified sum within three weeks; in default the stay shall stand vacated. The respondents are directed to file their counters in the meantime. The Court recorded competing contentions by the respondents that the petitioner ought first to have preferred an appeal, but proceeded only to grant limited interim relief without adjudicating the substantive merits of the assessment or the authority's power to demand penalty for the period February, 2018 to December, 2018.

The operation of the Garnishee Notice dated 26.8.2020 is stayed subject to the petitioner depositing the specified amount within three weeks, failing which the stay will be vacated; respondents to file counters.

Final Conclusion: Interim stay granted against execution of the Garnishee Notice dated 26.8.2020 for the specified periods, on condition of a deposit by the petitioner within three weeks; substantive issues including the correctness of the assessments and the contention regarding penalty for February, 2018 to December, 2018 remain undecided and are left for adjudication after filing of counters.

Provisional release of seized goods - security in the form of bond and bank guarantee for release - determination of security equivalent to tax and penalty for provisional release under sub section (6) of Section 67 of the CGST Act, 2017 - relevance of judicial precedents and judicial discipline in provisional release orders

Provisional release of seized goods - security in the form of bond and bank guarantee for release - determination of security equivalent to tax and penalty for provisional release under sub section (6) of Section 67 of the CGST Act, 2017 - Validity of the provisional release order and conditions imposed (execution of bond for value of seized goods and furnishing of bank guarantee equivalent to applicable tax and penalty). - HELD THAT: - The Appellate Authority examined the appeal limited to the conditions imposed for provisional release and noted that the investigation remains pending. The releasing authority had provisionally released the seized goods subject to execution of a bond for the value of the goods and furnishing of a bank guarantee equivalent to the amount of applicable tax and penalty. The authority found that the provisional release order was passed in accordance with law and specifically under sub section (6) of Section 67 of the CGST Act, 2017. The Appellate Authority further observed that the judicial decisions cited by the appellant did not apply squarely to the facts of the present case and therefore did not merit interference with the impugned order. On this basis, no fault was found with the determination of the security conditions imposed for provisional release and the appeal on these grounds was dismissed. [Paras 5, 6]

The provisional release order and the conditions imposed (bond and bank guarantee equivalent to tax and penalty) are sustained; no interference is warranted.

Final Conclusion: Appeal dismissed insofar as it challenges the conditions of the provisional release order; the releasing authority's order under sub section (6) of Section 67 of the CGST Act, 2017 is upheld and the matter continues to be subject to ongoing investigation.

Reopening of assessment - reassessment under Sections 147-148 - proviso to Section 147 - limitation for reopening beyond four years - failure to disclose fully and truly all material facts - change of opinion - audit objection insufficient to justify reopening - absence of concealment - no penalty under Section 271(1)(c)

Reopening of assessment - proviso to Section 147 - limitation for reopening beyond four years - failure to disclose fully and truly all material facts - change of opinion - audit objection insufficient to justify reopening - absence of concealment - no penalty under Section 271(1)(c) - Validity of reopening assessment for AY 1997-98 by issuance of notice under Section 148 beyond four years where the assessee had disclosed the relevant facts and the addition arose from a change of opinion/audit objection. - HELD THAT: - The Tribunal found that the assessee had furnished all details of income and the method of recognition of income was disclosed in the notes to the accounts, so there was no failure to disclose truly and fully all material facts. The reassessment proceeded on the basis of an audit objection and a change of opinion by the assessing officer. The assessing officer himself recorded that no concealment was noticed and accordingly no penalty under Section 271(1)(c) was initiated. The notice under Section 148 was issued well beyond four years from the end of the relevant assessment year. Applying the proviso to Section 147, reopening of assessment after the expiry of four years is barred where there is no failure on the part of the assessee to make full and true disclosure; an audit objection or mere change of opinion cannot furnish jurisdiction to reopen in such circumstances. The High Court agreed with the Tribunal's conclusion and held the reassessment void for being time-barred under the proviso to Section 147.

Reopening of assessment for AY 1997-98 was invalid as barred by limitation under the proviso to Section 147 since there was no failure by the assessee to disclose material facts and the reassessment rested on change of opinion/audit objection.

Final Conclusion: The Tribunal's annulment of the reassessment for AY 1997-98 was upheld; the Revenue's appeal is dismissed as infructuous and the reassessment held time-barred under the proviso to Section 147.

Reopening of assessment after four years - proviso to Section 147 concerning reopening where income escaped assessment due to failure to disclose fully and truly all material facts - failure to disclose fully and truly all material facts - reassessment based on materials already on record - change of opinion - scope of reason to believe for income escaping assessment

Proviso to Section 147 concerning reopening where income escaped assessment due to failure to disclose fully and truly all material facts - reassessment based on materials already on record - failure to disclose fully and truly all material facts - change of opinion - Validity of reopening assessment beyond four years under the proviso to Section 147 for AY 2012-13 where the reassessment reasons arose from the return and annexures already on record and the assessee had filed replies during original scrutiny. - HELD THAT: - The court examined whether the conditions of the proviso to Section 147 were attracted, namely that income had escaped assessment by reason of the assessee's failure to make a return or to disclose fully and truly all material facts. All material on which the Assessing Officer relied for reopening - including Form 3CD entries, schedules and the matters queried under section 142(1) - were available with the return and were specifically responded to during the original assessment. The reasons recorded for reassessment thus emanated from materials already on record and no fresh tangible material was unearthed thereafter. In those circumstances the assumption of jurisdiction amounted to a change of opinion and the proviso to Section 147 was not attracted. The court followed the principle applied in ACIT vs ICICI Security Primary Dealership Ltd that reopening is impermissible where there has been full disclosure in the return and the reassessment is founded on the same materials. [Paras 19, 20, 21]

Proceedings for reassessment beyond four years were not maintainable because the alleged escapement was not due to failure to disclose fully and truly all material facts; the reassessment and the order rejecting objections were quashed.

Final Conclusion: Writ petitions allowed; the order rejecting objections dated 23.12.2019 and the reassessment order dated 27.12.2019 for AY 2012-13 are quashed on the ground that the proviso to Section 147 is not attracted where the reasons for reopening were based on materials already on record and there was no failure to disclose fully and truly all material facts.

Interim stay of demand - prima facie case - financial hardship - safeguarding revenue interest by partial payment - judicial review of Tribunal's stay order

Interim stay of demand - prima facie case - safeguarding revenue interest by partial payment - Whether the Tribunal's rejection of the assessee's stay application could be interfered with and whether an interim stay of the demand should be granted pending disposal of the appeal. - HELD THAT: - The High Court examined the Tribunal's rejection of the stay application which was based on the conclusion that no prima facie case was made out and no financial hardship was demonstrated. The Court noted that the assessee had already remitted 25% of the disputed demand prior to approaching the Tribunal and had further complied with the condition imposed by the High Court by paying the additional sum ordered by it. On that basis the Court found that the interest of the revenue was sufficiently safeguarded by the partial payments already made and that no further security or conditions were necessary. The Court therefore concluded that interference with the Tribunal's order was warranted to the extent of continuing an interim stay of the demand until the appeal before the Tribunal is heard and disposed of on merits and in accordance with law.

Impugned order set aside and an interim stay of the demand granted, to continue until the Tribunal disposes of the appeal on merits, the stay remaining in force in light of the payments already made by the assessee.

Final Conclusion: Writ petition allowed; the order rejecting the stay is set aside and an interim stay of the assessment demand is continued until the Tribunal decides the appeal on merits, the Court relying on the partial payments made by the assessee to safeguard revenue interest.

Vires of subordinate legislation - mandatory electronic filing of income-tax returns - admission of writ petition and issuance of rule - notice to the Additional Solicitor General - interim relief pending adjudication

Vires of subordinate legislation - mandatory electronic filing of income-tax returns - interim relief pending adjudication - Challenge to the vires of Rule 12 of the Income-tax Rules, 1962 (mandating electronic filing of the return of income for assessment year 2019-20) admitted and issued for consideration; merits not decided. - HELD THAT: - The petition attacking the constitutional and statutory validity of Rule 12 insofar as it mandates electronic filing was heard and, on the materials and submissions, the Court issued rule on admission. The Court directed issuance of notice to the Additional Solicitor General of India in view of the constitutional and vires challenge and stood the matter over for further hearing after eight weeks. The Court recorded prior interim directions permitting the petitioner to file a paper return for assessment year 2019-20 within the timeline previously granted, but did not adjudicate the substantive vires challenge at this stage. [Paras 7, 8, 9]

Rule issued on admission; notice to the Additional Solicitor General; matter posted after eight weeks; merits to be finally adjudicated on return of the notice.

Final Conclusion: The petition challenging the validity of Rule 12 (mandatory e-filing) for AY 2019-20 has been admitted and notice directed to the Additional Solicitor General; the substantive question of vires remains pending and will be heard after eight weeks. An earlier interim permission to file the paper return for AY 2019-20 as permitted by the Court stands as ordered.

Validity of proceedings under section 153C of the Income-tax Act - Belonging to test for seized documents under section 153C of the Income-tax Act - Requirement of AO's satisfaction that seized documents do not belong to the searched person - Precedent weight of coordinate Bench, High Court and dismissal of SLP by the Supreme Court

Validity of proceedings under section 153C of the Income-tax Act - Belonging to test for seized documents under section 153C of the Income-tax Act - Precedent weight of coordinate Bench, High Court and dismissal of SLP by the Supreme Court - Deletion of the addition of Rs. 4 crores made for AY 2009-10 on the basis of Annexure A-1, Page 5, seized from Lalit Modi's premises. - HELD THAT: - The Tribunal upheld the CIT(A)'s deletion of the addition because Annexure A-1, Page 5, was held by earlier coordinate Bench and the Delhi High Court to belong to the searched person, Shri Lalit Modi, and not to the assessee. Under the statutory test applied, invocation of section 153C requires the AO to be satisfied that the seized document does not belong to the searched person; mere possession by the searched person of a document referring to another does not establish that it 'belongs to' that other person. The earlier findings-examining evidence including statements of Shri Lalit Modi that the proposal remained with him and was not acted upon-were affirmed and the legal position was further strengthened by dismissal of the SLP filed by Revenue. In these circumstances the initiation of proceedings under section 153C against the assessee on the basis of the said document was held not sustainable and the addition was rightly deleted by the CIT(A). [Paras 6, 7, 8, 10]

The addition of Rs. 4 crores for AY 2009-10 based on Annexure A-1, Page 5, is unsustainable under section 153C and the CIT(A)'s deletion is upheld; the Revenue's appeal is dismissed.

Final Conclusion: The Tribunal dismissed the Revenue's appeal and upheld the deletion of the addition for AY 2009-10 because the seized document relied upon was held to belong to the searched person (Shri Lalit Modi), rendering initiation of proceedings under section 153C against the assessee unsustainable; the appellate conclusions were supported by earlier Tribunal and High Court decisions and by dismissal of the SLP.

Condonation of delay - bonafide pursuit of alternative remedy - rectification under section 154 as alternative remedy - restoration for decision on merits

Condonation of delay - bonafide pursuit of alternative remedy - rectification under section 154 as alternative remedy - Whether the delay of 440 days in filing the appeal before the CIT(A) should be condoned. - HELD THAT: - The Tribunal found on the facts recorded by the CIT(A) and as explained by the assessee that the delay occurred because the assessee was pursuing a rectification petition under section 154 after receipt of the demand notice and thereafter following up on the rectification before the AO when CPC transferred the rectification request. The Tribunal accepted the assessee's explanation as a bonafide pursuit of an alternative remedy and, having regard to its earlier decision relied upon, held that delay occasioned for pursuing such remedy ought to be condoned. The Tribunal therefore exercised its discretionary power to condone the delay and permitted the appeal to be admitted for adjudication on merits. [Paras 4]

Delay of 440 days is condoned and the appeal is admitted.

Restoration for decision on merits - Whether the matter should be restored to the file of the CIT(A) for adjudication on merits after condoning the delay. - HELD THAT: - Having condoned the delay, the Tribunal directed that the appeal be restored to the file of the CIT(A) so that the substantive grievance of the assessee (relating to non-grant of credit for TDS and the correctness of the assessment) may be decided on merits by the CIT(A). The Tribunal did not decide the substantive issues on merit but remitted the matter for fresh decision by the CIT(A). [Paras 4, 5]

Matter restored to the CIT(A) for decision on merits.

Final Conclusion: The Tribunal allowed the appeal for statistical purposes by condoning the delay of 440 days as arising from the bonafide pursuit of a rectification remedy and restored the matter to the CIT(A) for adjudication on merits.

Reopening of assessment under section 147/148 - requirement of independent reason to believe - borrowed satisfaction and non-application of mind in recording reasons - sanction/approval under section 151 - satisfaction of sanctioning authority - nexus between recorded reasons and escapement of income - addition under section 68 read with section 115BBE - onus and evidentiary requirement

Reopening of assessment under section 147/148 - requirement of independent reason to believe - borrowed satisfaction and non-application of mind in recording reasons - sanction/approval under section 151 - satisfaction of sanctioning authority - nexus between recorded reasons and escapement of income - Legality of reopening the assessment for AY 2010-11 under section 147/148 - HELD THAT: - The Tribunal held that the reasons recorded by the Assessing Officer were essentially a replica of the report received from the Investigation Wing and were not verified against the assessee's audited financials. The recorded figures of buying, selling and profit in the reasons did not accord with the assessee's audited accounts and therefore the AO did not apply independent mind but proceeded on a borrowed satisfaction. The Principal CIT's approval was also recorded without independent verification of the material and thus was mechanical. There was no demonstrable nexus between the investigation material and formation of a reasoned belief that income had escaped assessment, particularly where the assessee had declared substantially higher commodity profits in its audited accounts. Applying the principle that information from the Investigation Wing is not tangible material per se unless followed by independent enquiry, the Tribunal concluded that the initiation of reassessment was vitiated for want of application of mind and flawed sanctioning, rendering the reopening invalid. [Paras 8, 9, 11, 14, 15]

Reopening under section 147/148 for AY 2010-11 quashed; ground allowed in favour of the assessee.

Addition under section 68 read with section 115BBE - onus and evidentiary requirement - use of investigative report as sole basis for addition - requirement to confront evidence and examine documentary proof - Sustainability of addition under section 68 read with section 115BBE on merits - HELD THAT: - On merits, the Tribunal found the addition to be founded on surmises. The assessee had produced audited financials showing commodity trading profit and bank evidence for the transactions, as well as ledger/account copies evidencing trades through named brokers; these documents were on record but were neither examined nor contradicted by the AO or CIT(A). Further, certain figures relied upon by the AO did not appear in the assessee's audited statements and replies received to summons issued under section 133(6) were not furnished to or confronted with the assessee. In absence of proper confrontation of investigation material, failure to examine the documentary evidence produced by the assessee and lack of any independent basis to conclude that the declared profits represented routed unaccounted money, the addition under section 68 read with section 115BBE could not be sustained. [Paras 16, 17, 18, 20, 21]

Addition under section 68 read with section 115BBE set aside; ground allowed in favour of the assessee.

Final Conclusion: The appeal is allowed: reassessment proceedings for AY 2010-11 under section 147/148 are quashed for lack of independent reasons and mechanical sanction, and the consequential addition under section 68 read with section 115BBE is also set aside for want of evidentiary foundation and failure to confront or examine the assessee's documents.

Depreciation - plant and machinery put to use / date of commercial production - burden of proof on the assessee - remand for verification of quantum - damage and wastage of goods (expired goods) - rejection based on surmise and conjecture - claim of bad debts vs write off of damaged goods - business promotion expenses - retrospective application of administrative circular - foreign travelling expenses - personal expenses of directors and corporate identity

Depreciation - plant and machinery put to use / date of commercial production - burden of proof on the assessee - remand for verification of quantum - Whether depreciation claimed in A.Y. 2008-09 on factory premises and plant & machinery can be disallowed for want of proof that assets were put to use. - HELD THAT: - The authorities below doubted commencement of manufacturing activity because the assessee did not produce approved building plans or conclusive proof of put to use date for plant and machinery; capital work in progress in balance sheet and absence of separate manufacturing accounts reinforced the doubt. The Tribunal recognised that such primary documents are material and the onus to produce them lies on the assessee. However, the Tribunal held that depreciation attributable to the opening written down value (i.e., on assets acquired and depreciated in earlier years) cannot be denied in the year under consideration. The CIT(A) had also directed verification of the actual amount of depreciation pertaining to the year; the Tribunal accepted that the AO should allow depreciation on opening WDV and accordingly directed the AO to verify original records (balance sheet, fixed asset schedule) to restrict any addition to the correct quantum of current year depreciation. [Paras 10, 15, 18]

Partly allowed - depreciation on opening written down value allowed; AO to verify and allow only the correct current year depreciation after examination of original records.

Damage and wastage of goods (expired goods) - rejection based on surmise and conjecture - claim of bad debts vs write off of damaged goods - Whether the claim for write off of damaged/expired goods is liable to be disallowed in part where the assessee produced ledger evidence of returns from parties but did not furnish details in VAT audit report. - HELD THAT: - The AO disallowed most of the claimed write off for lack of details in the VAT audit report, large increase in the claim vis a vis prior year, and the general practice of returns to suppliers. The CIT(A) sustained the disallowance on absence of cogent evidence and circumstantial indicia against the assessee. The Tribunal found that ledger entries and contra entries from recipient parties were not disputed and that the authorities below neither rejected the claim in entirety on cogent materials nor sought verification from concerned parties under statutory provisions. The Tribunal observed that the authorities either should have rejected the claim outright or admitted it wholly on documentary proof; a partial rejection based on conjecture was unsustainable. The Tribunal also noted that the claim, if treated as bad debts, would have been allowable and therefore the write off could not be labelled bogus on the available material. [Paras 22, 27, 28, 30]

Allowed - the addition on account of damage and wastage is deleted and the AO directed to remove the disallowance.

Business promotion expenses - retrospective application of administrative circular - Whether foreign business promotion expenses incurred to sponsor doctors' visit (A.Y. 2008-09) can be disallowed by applying CBDT Circular No.5/2012 dated 01-08-2012. - HELD THAT: - The authorities below treated the sponsored visits as prohibited benefits to medical practitioners and applied the CBDT Circular dated 01-08-2012 and the Explanation to Section 37(1) to disallow the expenditure. The Tribunal held that the Circular issued in 2012 cannot be applied retrospectively to A.Y. 2008-09. On the facts the expenses were incurred wholly and exclusively for business purposes and there was no provision in 2008 09 equating such outlays to nondeductible payments. The Tribunal also noted precedent on identical facts in favour of the assessee. Therefore the disallowance based on the later circular was not tenable for the year under consideration. [Paras 35, 39]

Allowed - business promotion expenses for A.Y. 2008 09 are deductible; disallowance under the 2012 Circular cannot be applied retrospectively.

Foreign travelling expenses - personal expenses of directors and corporate identity - Whether a part of foreign travelling expenses incurred for company directors' visit to an exhibition is disallowable as personal expenses. - HELD THAT: - The CIT(A) accepted 90% of the claimed foreign travel expenses but purported to disallow the remainder, arriving at a disallowance figure that, on calculation, was incorrect. The Tribunal held there is no provision to make disallowance on an estimated basis and emphasized that a corporate entity cannot be said to incur 'personal' expenditure of its directors; the directors' travel for business exhibitions supported by exhibition visiting cards and subsequent export evidence indicates a business purpose. Accordingly, the partial disallowance was unsustainable and the addition was deleted. [Paras 44, 46, 50]

Allowed - the foreign travelling disallowance is deleted and the AO directed to remove the addition (correcting the inadvertent computation).

Final Conclusion: The appeal is partly allowed. Depreciation is allowed to the extent of opening written down value with the AO directed to verify and allow only the correct current year depreciation; the addition on account of damage and wastage (expired goods) is deleted; foreign business promotion expenses for A.Y. 2008 09 are held deductible (the 2012 CBDT Circular cannot be applied retrospectively); and the disallowance of foreign travelling expenses is set aside. The AO is directed to give effect to these conclusions and to undertake the limited verification directed by the Tribunal.

Rejection of books of account under Section 145(3) - comparison of gross profit rates - capitalization of interest under Section 36(1)(iii) - date machinery put to use - own funds adjustment for capitalized interest

Rejection of books of account under Section 145(3) - comparison of gross profit rates - Whether the Assessing Officer was justified in rejecting the assessee's books of account under Section 145(3) on the basis of an alleged low gross profit and non-maintenance of quantity-wise stock registers and making an addition. - HELD THAT: - The Tribunal analysed the scope of power under Section 145(3), observing that rejection requires specific reasons based on facts and figures and cannot be invoked merely for deviations such as a lower gross profit rate or absence of stock registers unless coupled with other material defects. The assessee had furnished explanations for the decline in gross profit (change of business model, new machinery, wastage and sampling) and had supplied quantitative details which the AO did not controvert or point out as incorrect. Reliance was placed on precedents holding that mere deviation in gross profit or non-maintenance of stock registers, without specific defects or evidence of omissions/undisclosed sales, does not justify rejection. Applying these principles, the Tribunal found the AO's reasons not cogent or sufficient to reject the books and held that, having declined to reject the books, the book profits must be accepted and the trading addition deleted. [Paras 22, 23]

Books of account cannot be rejected under Section 145(3) on the facts of this case; the addition of Rs. 1,40,79,756/- based on alleged low gross profits is deleted.

Capitalization of interest under Section 36(1)(iii) - date machinery put to use - own funds adjustment for capitalized interest - Whether interest expense should be capitalized and, if so, the quantum to be capitalized under the proviso to Section 36(1)(iii) in respect of the machinery, with particular regard to the date the machinery was put to use and the use of own funds. - HELD THAT: - The Tribunal examined the remand findings and CIT(A)'s conclusion. The installation report showed the machine was installed and ready for use on 2nd June 2007, limiting the pre use period to two months; accordingly, interest disallowance should be confined to that period. The assessee had also applied its own funds towards acquisition; CIT(A) excluded the portion attributable to own funds in computing capitalizable interest. The Revenue did not dispute these factual findings at hearing. Given the installation date and the assessee's own funds contribution, the Tribunal found no infirmity in CIT(A)'s restriction of the capitalization to the amount allowed (thereby dismissing the Revenue's challenge to the shortfall), and held that the balance disallowance need not be capitalized. [Paras 24, 34]

Disallowance limited consistent with CIT(A)'s computation; machine treated as put to use on 2nd June 2007 and amount attributable to own funds excluded-Revenue's ground is dismissed to the extent challenged.

Final Conclusion: The Revenue's appeal is dismissed: the Tribunal upheld the CIT(A)'s deletion of the trading addition resulting from rejection of books under Section 145(3), and affirmed the CIT(A)'s restriction of capitalizable interest under Section 36(1)(iii) after treating the machine as put to use on 2nd June 2007 and excluding the portion attributable to own funds.

Notice u/s. 143(2) - jurisdiction of Assessing Officer - transfer of assessment under section 127 - best judgment assessment under section 144 - principle of natural justice - nullity for want of jurisdiction

Notice u/s. 143(2) - jurisdiction of Assessing Officer - nullity for want of jurisdiction - principle of natural justice - Validity of the assessment order dated 22-03-2015 for Assessment Year 2012-13 in view of absence of a valid notice u/s. 143(2) issued by the competent Assessing Officer and alleged transfer of jurisdiction. - HELD THAT: - The Tribunal found on the material on record that the scrutiny assessment was framed without issuance of notice u/s. 143(2) by the Assessing Officer who ultimately completed the assessment. The record showed the notice said to have been issued came from a different ward/officer who did not have jurisdiction over the assessee; no valid transfer under section 127 was placed on record. Reliance was placed on established principle that issuance of a notice u/s. 143(2) by the competent AO is a sine qua non for conducting a scrutiny assessment, and where that requirement is not satisfied the assessment is vitiated. The Tribunal further noted failure to afford effective opportunity of hearing before framing the best judgment assessment under section 144, rendering the order contrary to the principle of natural justice. On these concurrent findings of fact and law, and following analogous decisions, the impugned assessment was held to be coram non judice and null in law. [Paras 5, 6]

Impugned assessment order dated 22-03-2015 for AY 2012-13 is quashed as no valid notice u/s. 143(2) was issued by the competent Assessing Officer and the assessment is null for want of jurisdiction and denial of opportunity.

Final Conclusion: The Revenue's appeal ITA No. 2179/Kol/2016 is dismissed and the assessee's Cross Objection No. 34/Kol/2019 is allowed; the assessment for Assessment Year 2012-13 dated 22-03-2015 is quashed for want of a valid notice u/s. 143(2) by the competent Assessing Officer.

Deduction under Section 80P(2) - Exclusion under Section 80P(4) - Primary Agricultural Credit Society - Assessing Officer's factual enquiry into loan purpose - Registration certificate not conclusive - Each assessment year is separate - Remand for fresh examination

Deduction under Section 80P(2) - Exclusion under Section 80P(4) - Primary Agricultural Credit Society - Assessing Officer's factual enquiry into loan purpose - Registration certificate not conclusive - Claim for deduction under Section 80P(2) for AY 2017-18 remitted to the Assessing Officer for fresh factual enquiry into the nature and purpose of loan disbursements - HELD THAT: - The Tribunal applied the law laid down by the Full Bench of the Kerala High Court in The Mavilayi Service Co-operative Bank Ltd. v. CIT, holding that after insertion of sub-section (4) the Assessing Officer is not bound by the Registrar's classification and must enquire into the factual activities of the society for each assessment year. In the present case the Assessing Officer had concluded that agricultural credit disbursed was only minuscule and that the assessee was essentially carrying on banking business, but did not carry out the detailed examination of individual loan disbursements to determine their purpose. The Tribunal held that such granular enquiry is necessary - including verification of loan particulars to identify instances of non agricultural lending - before denying deduction under Section 80P(2). Consequently the Tribunal directed restoration of the issue to the Assessing Officer to examine activities of the assessee in accordance with the Full Bench dictum, to list loans disbursed for non agricultural purposes if any, and to decide the claim in accordance with law; the assessee was directed to cooperate and not to seek unnecessary adjournments. [Paras 6]

Issue remanded to the Assessing Officer for fresh enquiry and decision in accordance with the Full Bench of the Kerala High Court; assessee to furnish details and cooperate.

Final Conclusion: The Tribunal allowed the appeal for statistical purposes by remanding the substantive question of eligibility for deduction under Section 80P(2) in respect of AY 2017-18 to the Assessing Officer for fresh factual examination; the stay application was dismissed as infructuous.

Tax Deduction at Source - Assessee in default under section 201 - Fee for Technical Services (FTS) under Article 12 of India USA DTAA (make available test) - Managerial, technical or consultancy services as per Explanation 2 to section 9(1)(vii) of the Income tax Act - Royalty - Application of higher withholding rate under section 206AA

Fee for Technical Services (FTS) under Article 12 of India USA DTAA (make available test) - Managerial, technical or consultancy services as per Explanation 2 to section 9(1)(vii) of the Income tax Act - Characterisation of payments made to the US subsidiary as FTS/managerial/technical/consultancy services or as business support services was not finally adjudicated and is remanded to the first appellate authority for fresh examination. - HELD THAT: - The Tribunal found that neither the Assessing Officer nor the first appellate authority properly analysed the nature and content of services rendered by the US subsidiary in the context of Explanation 2 to section 9(1)(vii) and Article 12 of the India USA DTAA. The assessee's case that the payments relate to business support (identifying target customers, promotional activities, trade shows) and do not make available technical knowledge, skill or know how has not been shown to be incorrect on the record. Because the authorities proceeded without bringing supporting materials and without adequate analysis of the legal tests (including the make available concept under the DTAA), the Tribunal set aside those conclusions and directed fresh consideration after recording evidence and analyzing the relevant statutory and treaty provisions. [Paras 12, 13, 14]

Remanded to the first appellate authority for fresh adjudication of whether the payments qualify as FTS/managerial/technical/consultancy services or as business support services.

Royalty - Tax Deduction at Source - The finding that part of the payment constitutes royalty was not sustained on the record and is remanded for fresh examination. - HELD THAT: - The first appellate authority observed that some payments were in the nature of royalty (market analysis, online data, customer database). The assessee disputed that finding and the Tribunal noted that the CIT(A) did not bring on record material establishing that the US entity owned or supplied such databases or that the payments were for use of proprietary data. In view of the absence of supporting material and reasoned analysis, the Tribunal directed that the question of whether any portion of the payments is to be characterised as royalty should be reconsidered by the first appellate authority with appropriate evidentiary basis. [Paras 7, 13, 14]

Remanded to the first appellate authority to examine afresh, with supporting materials, whether any part of the payments constitutes royalty and the consequent TDS implications.

Assessee in default under section 201 - Application of higher withholding rate under section 206AA - Tax Deduction at Source - Liability to deduct tax at source, the determination of the rate (including application of the higher rate for non furnishing of Tax Residency Certificate), and the consequential treatment of the assessee as an assessee in default are remanded for redetermination after fresh findings on characterization of payments. - HELD THAT: - Because the characterisation of the payments (FTS, royalty or business support) is central to whether TDS was required and at what rate, the Tribunal held that the consequential conclusions reached by the AO and affirmed by the CIT(A) - including treating the assessee as an assessee in default under section 201 and applying section 206AA for a higher withholding rate - cannot be finally adjudicated without resolving the primary characterisation issues. The Tribunal therefore directed that once the nature of the payments is re examined and appropriate findings are recorded, the question of TDS liability, rate and default status be reconsidered in accordance with law. [Paras 2, 4, 14]

Remanded for fresh adjudication of TDS liability, applicable rate (including application of section 206AA), and any default consequences after re determination of the nature of payments.

Final Conclusion: The common order of the CIT(A) is set aside and all issues regarding the characterisation of payments to the US subsidiary, the question of royalty, and the consequent TDS/default and rate issues are restored to the file of the first appellate authority for fresh adjudication after bringing on record supporting materials and affording opportunity of hearing; the appeals are treated as allowed for statistical purposes.

Deduction under section 35(1)(ii) - withdrawal/rescission of approval by the Central Government - Explanation to section 35 protecting the payer when approval is withdrawn - vested right of payer on payment date - evidentiary value of statements not confronted to the assessee / right of cross-examination - reliance on Investigation Wing material supplied behind the back of the assessee

Deduction under section 35(1)(ii) - withdrawal/rescission of approval by the Central Government - vested right of payer on payment date - Claim for weighted deduction under section 35(1)(ii) in respect of donation to School of Human Genetics and Population Health is allowable despite subsequent rescission of the donee's approval. - HELD THAT: - The Tribunal held that the assessee made the donation while the donee held approval under section 35(1)(ii). Subsequent withdrawal/rescission of that approval by the Central Government cannot defeat the assessee's right to claim deduction for sums paid when approval was in force. The decision follows earlier coordinate-bench decisions (including DCIT vs. Maco Corporation (India) Pvt. Ltd. and other Kolkata Bench precedents) which applied the principle that withdrawal of recognition in the hands of the payee does not affect the payer's entitlement. The Tribunal noted statutory and jurisprudential support that quasi judicial approvals or recognitions, once granted and operative on the date of payment, cannot be retrospectively used to strip vested rights of payers who acted while approval subsisted. [Paras 8, 12]

Deduction under section 35(1)(ii) allowed.

Evidentiary value of statements not confronted to the assessee / right of cross-examination - reliance on Investigation Wing material supplied behind the back of the assessee - Statements and investigation material not supplied to the assessee and recorded without opportunity for cross examination cannot be used to disallow the deduction. - HELD THAT: - The Tribunal found that the Assessing Officer relied on statements recorded by the Investigation Wing but did not furnish copies of those statements to the assessee nor permit cross examination of witnesses. In those circumstances the Tribunal applied the principle of natural justice and settled authorities that adverse material relied upon but not confronted to the assessee, and statements recorded behind the assessee's back without opportunity of cross examination, cannot form the basis for disallowance. The assessee's denial and the absence of direct evidence linking the assessee to any cash back arrangement were held to undermine the AO's inference that the donation was bogus. [Paras 11]

Investigation statements not relied upon; no disallowance can be sustained on that basis.

Final Conclusion: The Tribunal allowed the appeal, holding that the assessee is entitled to the deduction under section 35(1)(ii) for the donation made to School of Human Genetics and Population Health for AY 2013-14 and that the disallowance based on undisclosed investigation statements and the later rescission of the donee's approval is not sustainable.

Administrative and Establishment expenses as application of income for charitable purposes - Allowable accumulation under section 11(1)(a) of the Income tax Act - Computation of 15% accumulation on gross receipts - Registration under section 12A and entitlement to exemption under section 11 - Application of precedent interpreting 'income derived from property' for computing accumulation

Administrative and Establishment expenses as application of income for charitable purposes - Registration under section 12A and entitlement to exemption under section 11 - The Administrative & Establishment expenses of Rs. 2,18,020/- are allowable as application of income for charitable purposes and must be treated as application of income under section 11(1) for computing exemption. - HELD THAT: - The assessee, a trust registered under section 12A, had claimed Administrative & Establishment expenses (audit fee, bank charges, rates and taxes etc.) as application of income. The Assessing Officer disallowed Rs. 2,18,020/- without assigning reasons. Relying on the jurisdictional High Court ratio that salaries and miscellaneous expenses incurred for carrying out the objects of the trust are application of income, the Tribunal held that the listed expenses are necessary for running the trust and achieving its objectives (audit fee being necessary for Form 10B, bank charges for banking operations, rates and taxes for premises), and therefore fall within application of income for charitable purposes. The AO was directed to allow the expenditure as application of income for the purposes of section 11(1)(a). [Paras 5]

Administrative & Establishment expenses of Rs. 2,18,020/- are allowable as application of income and must be allowed by the Assessing Officer.

Allowable accumulation under section 11(1)(a) of the Income tax Act - Computation of 15% accumulation on gross receipts - Application of precedent interpreting 'income derived from property' for computing accumulation - The accumulation permitted under section 11(1)(a) is to be computed at 15% of the gross receipts (total receipts as per accounts), not on net receipts after deduction of revenue expenditure. - HELD THAT: - The Tribunal followed coordinate bench and higher precedent holding that the percentage permitted to be accumulated under section 11(1)(a) is to be applied to the income before application (i.e., gross receipts) and not to net receipts after deducting amounts which are application of income. The reasoning draws on earlier authoritative decisions that the phrase 'income derived by the trust from property' and the statutory language require taking the income available before application for computing the permissible percentage of accumulation. Applying that principle, the Tribunal directed the AO to allow accumulation at 15% of the gross receipts of Rs. 2,42,56,750/- as claimed by the assessee. [Paras 6]

Accumulation under section 11(1)(a) is to be allowed at 15% of gross receipts; the AO is directed to compute the exemption accordingly.

Final Conclusion: The appeal is partly allowed: the Assessing Officer is directed to (i) treat Administrative & Establishment expenses of Rs. 2,18,020/- as application of income for charitable purposes and allow them, and (ii) compute the 15% accumulation under section 11(1)(a) on the assessee's gross receipts as claimed.

Disallowance under section 14A read with Rule 8D - Computation under Rule 8D(2)(iii) to be limited to investments which yielded exempt dividend - Presumption of use of own funds and deletion of interest component under Rule 8D(2)(ii) - Allowability of mark to market loss on unrealized foreign exchange forward contracts under mercantile system - Inapplicability of CBDT Instruction No.3/2010 to hedging (non trading) derivative contracts - Relevance of Accounting Standard (AS 11) and Section 145 in recognising forex MTM gains/losses - Distinction between hedging (business) transactions and speculative/trading derivative transactions

Disallowance under section 14A read with Rule 8D - Computation under Rule 8D(2)(iii) to be limited to investments which yielded exempt dividend - Presumption of use of own funds and deletion of interest component under Rule 8D(2)(ii) - Validity and quantum of disallowance under section 14A read with Rule 8D and the method of computation under Rule 8D(2)(iii). - HELD THAT: - The Tribunal upheld the CIT(A)'s deletion of the interest linked disallowance computed under Rule 8D(2)(ii) on the basis that the assessee had sufficient own funds and there was a presumption that such funds were applied to the relevant investments (as recognised by the Calcutta High Court in the cited authority). With respect to the percentage based component under Rule 8D(2)(iii), the Tribunal followed its earlier decision in the assessee's own case for AYs. 2008 09 and 2009 10 and directed remand to the Assessing Officer for recomputation: only those investments which actually yielded exempt dividend income during the year are to be taken into account for computing the disallowance under Rule 8D(2)(iii). The recomputation will take into account the amount already suo motu disallowed by the assessee, with directions consistent with the earlier order to adjust the final add back accordingly. [Paras 4, 6]

The CIT(A)'s order was upheld: interest component under Rule 8D(2)(ii) deleted; Rule 8D(2)(iii) computation remanded to AO to consider only dividend yielding investments and to recompute the disallowance accordingly.

Allowability of mark to market loss on unrealized foreign exchange forward contracts under mercantile system - Inapplicability of CBDT Instruction No.3/2010 to hedging (non trading) derivative contracts - Relevance of Accounting Standard (AS 11) and Section 145 in recognising forex MTM gains/losses - Distinction between hedging (business) transactions and speculative/trading derivative transactions - Whether the MTM loss on unrealized forward foreign exchange contracts entered into for hedging business exposures is allowable as deduction. - HELD THAT: - The Tribunal affirmed the CIT(A)'s conclusion that the MTM loss of the assessee arising from unrealized forward contracts was a real loss in the revenue field and therefore deductible. The assessee followed the mercantile system of accounting and accounted for unrealized forward contract losses in accordance with AS 11; the forward contracts were effected to hedge trade receivables/payables and were incidental to ordinary course business (not trading in derivatives). The CBDT Instruction No.3/2010, issued in the context of trading in derivatives, was therefore held not to apply to these hedging transactions. The Tribunal applied the ratio of the Supreme Court and relevant High Court/tribunal precedents (recognising MTM losses attributable to revenue transactions as allowable) and followed coordinate bench decisions to uphold deletion of the addition. [Paras 5, 11, 13]

The CIT(A)'s deletion of the addition was upheld; the MTM loss on unrealized hedging forward contracts recognised under mercantile accounting and AS 11 is allowable.

Final Conclusion: Both the assessee's appeal and the Revenue's cross appeal were dismissed: the section 14A disallowance was sustained only to the limited extent directed for recomputation under Rule 8D(2)(iii) (with interest component deleted), and the disallowance of the MTM forex derivative loss was deleted and the deduction allowed.

Seizure under Section 110 of the Customs Act - Reasons to believe - Prima facie examination and local opinion - Instruction No. 1/2017 - Quashing of seizure order and return of goods

Seizure under Section 110 of the Customs Act - Reasons to believe - Prima facie examination and local opinion - Instruction No. 1/2017 - Validity of the Panchnama dated 21.7.2020 (seizure of goods and vehicle) insofar as the recorded "reasons to believe" justified exercise of powers under Section 110 of the Customs Act. - HELD THAT: - The Court examined the Panchnama's recorded "reasons to believe" which rested solely on (a) a prima facie visual examination suggesting foreign origin, (b) opinions of local dealers, and (c) inscriptions on some bags. Relying on the earlier decision in Writ Tax No. 573 of 2020, the Court held that "reasons to believe" for exercising seizure powers under Section 110 must be based on acceptable material and cannot be founded on mere "moonshine." The Court found that a naked-eye prima facie examination, local traders' opinion and inscriptions on packaging, without more, do not constitute adequate material to form a valid belief under Section 110. The Court also considered Instruction No. 1/2017 and, applying the same reasoning as in the earlier decision, concluded that the Panchnama was legally unsustainable.

Panchnama dated 21.7.2020 set aside and the respondent directed to forthwith return the goods seized thereby to the petitioner; no orders were passed on the provisional release order.

Final Conclusion: Writ petition allowed insofar as the seizure (Panchnama dated 21.7.2020) is quashed and the seized goods are to be returned to the petitioner; the Court did not rule on the provisional release order.

Right to consult and be represented by an authorized agent during recording of statement under Section 108(3) of the Customs Act - administrative determination of representation requests and expeditious decision in accordance with law

Right to consult and be represented by an authorized agent during recording of statement under Section 108(3) of the Customs Act - administrative determination of representation requests and expeditious decision in accordance with law - Application under Section 108(3) of the Customs Act for being accompanied by an authorized agent (advocate) when attending proceedings was directed to be filed and considered by the authority. - HELD THAT: - The High Court, noting that the petitioner sought to appear before the authority along with his advocate under Section 108(3) of the Customs Act and that no order had been passed on the application, disposed of the writ petition by directing procedural compliance rather than deciding the substantive entitlement. Treating the question as of limited controversy and with the parties' consent, the court ordered that the petitioner may file the appropriate application before the authority within one week (if not already filed) and that the authority shall consider and decide that application expeditiously and in accordance with law. The court further directed that, if the authority permits the petitioner to be accompanied by his authorized agent, the authority may proceed with the matter accordingly. The order therefore remands the decision on representation to the administrative authority for fresh consideration without adjudicating the substantive merits.

Petition disposed by directing the petitioner to move the application within one week and the authority to decide it expeditiously and in accordance with law; substantive entitlement left to the authority.

Final Conclusion: Writ petition disposed of by a direction to the administrative authority to consider the petitioner's application under Section 108(3) of the Customs Act filed within one week and to decide it expeditiously in accordance with law; no substantive ruling on entitlement or on alleged harassment/detention was made.

Interpretation of Section 28(2) of the Customs Act, 1962 - Scope of 'special' assessment under Section 28(4) and (5) - Benefit of voluntary payment under Section 28(1)(b) and its exclusion - Assessment involving collusion, wilful mis-statement or suppression of facts - Limitation and extended limitation in customs assessment - Writ jurisdiction and scope for factual interference

Interpretation of Section 28(2) of the Customs Act, 1962 - Scope of 'special' assessment under Section 28(4) and (5) - Benefit of voluntary payment under Section 28(1)(b) and its exclusion - Whether the benefit under Section 28(2) is available where proceedings are initiated under Section 28(4)/(5) alleging collusion, wilful mis-statement or suppression of facts. - HELD THAT: - The Court held that Section 28 contemplates two distinct streams of assessment: regular assessments under Section 28(1) (with the two-year limitation) and special assessments under Section 28(4) (with the extended five-year limitation where collusion, wilful mis-statement or suppression of facts are alleged). Section 28(2) affords a specific benefit to a person who has paid duty and interest voluntarily in the circumstances envisaged by Section 28(1)(b) and thereby forecloses further proceedings in that regular-assessment stream. The placement and language of Section 28(2), immediately following Section 28(1), and the explicit exclusion in Section 28(1) of cases involving collusion/mis-statement/suppression, lead to the conclusion that the protection under Section 28(2) does not extend to cases pursued under Section 28(4)/(5). Where a show cause notice is issued invoking the special-assessment provisions, the alternate scheme in Section 28(5)/(6) applies and the limited benefit of Section 28(2) is not available. [Paras 16, 17, 20]

Benefit under Section 28(2) is confined to voluntary payments falling within Section 28(1)(b) and is not available where a show cause notice is issued under Section 28(4)/(5) alleging collusion, wilful mis-statement or suppression of facts.

Assessment involving collusion, wilful mis-statement or suppression of facts - Writ jurisdiction and scope for factual interference - Whether the writ court should adjudicate disputed factual questions of collusion, wilful mis-statement or suppression of facts in this petition challenging the impugned order. - HELD THAT: - The Court declined to probe voluminous and disputed factual allegations of collusion and suppression in writ proceedings. Determination of whether the conditions precedent for invoking the special-assessment regime under Section 28(4)/(5) are satisfied involves mixed questions of fact and law and requires detailed factual enquiry. Such disputed factual questions are better left to the appellate authority or the fact-finding forum; therefore the High Court refrained from interfering with the impugned order on merits in this writ jurisdictional challenge. [Paras 18]

No interference in the writ petition with respect to factual disputes on collusion/mis-statement/suppression; those matters are to be examined by the appellate authority.

Limitation and extended limitation in customs assessment - Writ jurisdiction and scope for factual interference - Whether the petitioner should be permitted to file an appeal against the impugned order despite limitation and how the appeal is to be treated. - HELD THAT: - Although the writ petition was dismissed on the legal points described above, the Court granted relief in respect of limitation by permitting the petitioner to file an appeal before the appellate authority within two weeks of the order's upload. The registry of the appellate authority is directed to receive the appeal without reference to limitation if filed within that window, subject to all other statutory pre-conditions; the appeal is to be heard and disposed of on merits. This direction is procedural and confined to acceptance of the appeal despite limitation for the limited period specified. [Paras 21]

Writ petition dismissed, but petitioner permitted to file appeal within two weeks; such appeal shall be received without reference to limitation and heard on merits subject to other statutory conditions.

Final Conclusion: The writ petition is dismissed. The Court construed Section 28 to confine the protection of Section 28(2) to voluntary payments made under the regular-assessment stream of Section 28(1)(b) and held that that protection does not extend to proceedings initiated under Section 28(4)/(5) for alleged collusion, wilful mis-statement or suppression of facts. The High Court declined to entertain factual disputes on collusion in writ proceedings and permitted the petitioner a two-week window to file an appeal which shall be received without reference to limitation and disposed on merits.

Amendment of bill of entry under Section 149 of the Customs Act - proviso to Section 149 - documents 'in existence' at time of clearance - remedy by amendment as distinct from appellate remedy - remand for fresh consideration of contemporaneous documents

Proviso to Section 149 - documents 'in existence' at time of clearance - Amendment of bill of entry under Section 149 of the Customs Act - Meaning of the phrase 'in existence' in the proviso to Section 149 and whether documents relied upon for amendment must already be on departmental record. - HELD THAT: - The proviso to Section 149 permits amendment after clearance only on the basis of documentary evidence which was 'in existence' at the time the goods were cleared. The Court rejected the revenue's narrower construction that such documents must already be available on the Department's record. What the proviso contemplates is that an assessee may produce documents that existed at the relevant time to establish an error; the question whether those documents are genuine or were actually in existence is a factual matter for the customs authorities to examine. The Court emphasised that the Department must take note of documents presented by the assessee as contemporaneous and carry out appropriate factual scrutiny rather than treat absence from departmental files as an absolute bar to amendment. [Paras 11, 12, 13]

The restrictive interpretation advanced by the revenue is rejected; documents claimed to have been 'in existence' at the relevant time may be produced for consideration and their genuineness/ contemporaneity is to be examined by the authorities.

Remedy by amendment as distinct from appellate remedy - Whether the appropriate remedy for an inadvertent error in a bill of entry is an appeal or amendment under Section 149. - HELD THAT: - The Court held that where the grievance is an inadvertent factual mistake in the bill of entry (such as an erroneous unit price), the correct remedy is amendment of the document under Section 149 and not an appeal. An appeal addresses legal or substantive adjudicatory errors, whereas amendment is the appropriate mechanism for rectifying factual mistakes in the bill of entry. [Paras 9]

The suggestion that the petitioner should resort to the appellate remedy is misplaced; amendment is the appropriate remedy for the inadvertent error asserted.

Remand for fresh consideration of contemporaneous documents - Relief to be granted where amendment was rejected without permitting fresh consideration of contemporaneous documents. - HELD THAT: - Having found the revenue's approach incorrect, the Court set aside the rejection and directed that the matter be reconsidered de novo. The petitioner was granted liberty to file documents it relied upon as contemporaneous within two weeks from uploading of the order. The revenue was directed to examine whether those documents were in existence at the relevant time and to pass appropriate orders after hearing the petitioner within six weeks. [Paras 14, 15]

Rejection of the amendment request is set aside; matter remitted for fresh consideration with directions permitting the petitioner to file contemporaneous documents and directing the revenue to decide within a specified timeframe.

Final Conclusion: Writ petition allowed; the respondent's rejection of the petitioner's request to amend bills of entry is set aside and the matter is remitted for de novo consideration of contemporaneous documents claimed to have been 'in existence' at the time of clearance, with liberty to the petitioner to file such documents and a direction that the revenue examine and decide the matter within the prescribed period.

Restoration of company name under Section 252(3) - Strike off action under Section 248 - Duty to file financial statements and annual returns - Consequential directions upon restoration - Conditional restoration subject to compliance and payment of costs - Registrar's authority to take proceedings for late filings

Restoration of company name under Section 252(3) - Duty to file financial statements and annual returns - Restoration of the appellant company's name to the Register of Companies was ordered as just and equitable under Section 252(3). - HELD THAT: - The Tribunal considered the appellant's explanation that the company was operational and had earned revenue for the financial years 2016-17 to 2019-20, and that delays in filing statutory returns were unintentional. The Tribunal also noted production of the company's latest balance sheets, GST returns and income-tax filing records after directions. Applying the statutory test in Section 252(3), the Tribunal was satisfied that at the time of striking off the company was carrying on business or in operation or that justice required restoration, and accordingly directed restoration of the company's name to the register. [Paras 11, 12]

Name of the company restored to the Register of Companies and Registrar directed to change status to Active and take consequential steps.

Strike off action under Section 248 - Registrar's authority to initiate strike off - The Tribunal recorded the Registrar's contention that strike off proceedings followed due process under Section 248 but nevertheless proceeded to restore the company. - HELD THAT: - The ROC's report stated that notices were issued and statutory publication requirements under the removal rules were complied with, and that the company had failed to file returns since 2016. While acknowledging the ROC's procedural compliance and its view that the strike off was triggered by the directors' failure to discharge statutory duties, the Tribunal nonetheless exercised the remedial power under Section 252(3) after being satisfied on the appellant's submissions and documents produced. [Paras 8, 9, 12]

Restoration ordered despite Registrar having followed strike off procedure.

Consequential directions upon restoration - Conditional restoration subject to compliance and payment of costs - Registrar's authority to pursue penalties for late filings - The Tribunal prescribed conditions and incidental directions for restoration, including filing pending documents, payment of costs, submission of undertakings, restraint on alienation and publication of the order; and preserved ROC's power to proceed for alleged late filings. - HELD THAT: - The Tribunal directed the ROC to permit filing of annual returns and financial statements for restoration, required the appellant to file all statutory documents with prescribed fees/additional fees/fine within 30 days of restoration, and mandated a joint undertaking by shareholders regarding non use of accounts for tainted funds during demonetization. The appellant was ordered to pay costs to the Central Government and to ensure compliance; until compliances are completed the company was restrained from alienating valuable assets. The order also provides that restoration shall not circumscribe the ROC's power to proceed against the company and its directors for late filings. [Paras 12]

Restoration is conditional on specified filings, undertakings and payment of costs; ROC to publish the order and may still initiate proceedings for late compliance.

Final Conclusion: The Tribunal allowed the appeal and ordered restoration of the appellant company's name on the Register of Companies as just and equitable under Section 252(3), subject to specified filings, undertakings, payment of costs and other incidental directions, while preserving the Registrar's power to take action for alleged late compliance.

Scheme of Arrangement by way of Amalgamation - scheme sanction under Sections 230-232 of Companies Act, 2013 - dispensing with convening of meetings - consent affidavits - appointed date - service of notice on statutory authorities

Dispensing with convening of meetings - consent affidavits - shareholders and creditors - Dispensing with convening/holding of meetings of shareholders, secured creditors and unsecured creditors for the applicant companies in respect of the proposed Scheme, on the basis of filed consent affidavits. - HELD THAT: - The Tribunal examined the affidavits and certificates filed on behalf of Begonia Hotels Pvt. Ltd. (Transferor Company No.1), Nightingale Hotels Pvt. Ltd. (Transferor Company No.2) and Fleur Hotels Pvt. Ltd. (Transferee Company) and noted that unanimous consents by equity shareholders (100% voting share) and the stated proportions of consenting secured and unsecured creditors had been produced. In view of those consent affidavits and the certificates from the auditors certifying the lists, the Tribunal dispensed with the requirement to convene meetings of the respective classes of shareholders, secured creditors and unsecured creditors as detailed in the order. The directions specify, company-wise, that meetings are dispensed with for equity shareholders, secured creditors and unsecured creditors (and preferential shareholders in the Transferee where applicable) where the requisite consents by value and/or number have been filed, and record the precise percentages of consent relied upon for this dispensation. [Paras 8, 9, 10, 12]

Meetings of the respective classes of shareholders and creditors for each applicant company are dispensed with as per the consent affidavits and certificates on file.

Appointed date - Scheme of Arrangement by way of Amalgamation - The appointed date for the Scheme is fixed as 1st April 2019, subject to directions of the Tribunal. - HELD THAT: - The Scheme itself specifies the appointed date as 1st April 2019. The Tribunal recorded that the appointed date shall be 1st April 2019 subject to its directions, thereby adopting the appointed date stated in the Scheme for the purposes of the proceedings. [Paras 11]

Appointed date for the Scheme fixed as 1st April 2019, subject to the Tribunal's directions.

Service of notice on statutory authorities - scheme sanction under Sections 230-232 of Companies Act, 2013 - Service of notice of the application on specified statutory authorities directed. - HELD THAT: - The Tribunal directed that notice of the application be served on the Regional Director (MCA), Registrar of Companies (NCT of Delhi & Haryana), Official Liquidator, the Income Tax Department (with disclosure of sufficient assessment details) and any other sectoral regulators as required. The direction ensures statutory authorities are informed so they may file responses if necessary. [Paras 13]

Notice to be served on the listed statutory authorities, including Regional Director, ROC, Official Liquidator, Income Tax Authorities and any other sectoral regulators as required.

Final Conclusion: The joint application under Sections 230-232 of the Companies Act, 2013 for the proposed Scheme of Amalgamation is allowed on the terms recorded: meetings of the respective classes of shareholders and creditors are dispensed with where consent affidavits have been filed; the appointed date is 1st April 2019 subject to Tribunal directions; and notice is to be served on the specified statutory authorities. The application is disposed of accordingly.

Forensic examination of disputed signatures where forgery is alleged - power to order forensic examination under Rule 43(3) of the NCLT Rules - exercise of Tribunal's document-production and inquiry powers under Section 424 of the Companies Act, 2013 - production of original documents and specimen signature for expert comparison - requirement of natural justice by bringing relevant facts on record

Forensic examination of disputed signatures where forgery is alleged - power to order forensic examination under Rule 43(3) of the NCLT Rules - production of original documents and specimen signature for expert comparison - exercise of Tribunal's document-production and inquiry powers under Section 424 of the Companies Act, 2013 - requirement of natural justice by bringing relevant facts on record - Forensic verification of the applicant's signatures on the Power of Attorney dated 31.07.2006, the audited financial statements for 2013-14 and 2014-15, and the two PAN cards should be ordered and originals produced for expert comparison. - HELD THAT: - The Tribunal found a material difference in the signatures of the applicant on the documents in issue after considering the pleadings and the Company Secretary's letter. Rule 43(3) of the NCLT Rules permits a party alleging forgery to move for forensic examination and the Bench may, for reasons to be recorded, send disputed records for opinion of the Central Forensic Science Laboratory. Section 424 of the Companies Act, 2013 confers on the Tribunal powers analogous to a civil court to require production of documents and regulate procedure. In the interest of natural justice and to ensure that all facts bearing on the controversy are placed on record, the Tribunal exercised these powers and directed production of the original audited financial statements for 2013-14 and 2014-15, the original Power of Attorney dated 31.07.2006 and the originals of the two PAN cards, and required the applicant to appear in person to furnish a specimen signature. The Registry was directed to send the originals and specimen signature to the Central Forensic Science Laboratory for comparison. The Tribunal also directed that the costs of the forensic investigation be borne by the applicant and ordered a deposit to the Pay & Accounts Officer, Ministry of Corporate Affairs, with provision for additional sums if required. [Paras 15, 17, 18, 19, 20]

Application for forensic verification allowed; Respondent Company to produce originals of audited financial statements for 2013-14 and 2014-15; applicant to produce original POA and original PAN cards and to give specimen signature; documents and specimen to be sent to CFSL for comparison; applicant to deposit costs; TIA allowed.

Final Conclusion: The Tribunal allowed the interlocutory application and ordered forensic examination of the disputed signatures by CFSL, directed production of the original documents and specimen signature, and directed payment by the applicant of the costs of the forensic investigation.

Scheme of Amalgamation - Dispensation of meetings under Section 230 - Affidavit consent under Section 230(9) - Service on the Official Liquidator under Section 230(5) - Filing of Form CAA-3 - Presentation of petition in Form CAA-5 for sanction

Dispensation of meetings under Section 230 - Affidavit consent under Section 230(9) - Whether the calling of meetings of members and creditors for approval of the Scheme of Amalgamation could be dispensed with. - HELD THAT: - The Tribunal applied Section 230(9) of the Companies Act, 2013, which permits dispensation of calling a meeting of a creditor or class of creditors where creditors of at least 90% value have agreed to the scheme by affidavit. The material on record showed consents by over 99% of shareholders and the lone unsecured creditor of the Transferor Company, and consents by over 99% of shareholders, all secured creditors and over 94% of unsecured creditors of the Transferee Company. Given these affidavits of consent, the Tribunal found that calling the meetings under Section 230(1) was unnecessary and would not serve any purpose, and therefore dispensed with the meetings and publication of notices as prayed. [Paras 10, 11, 12]

Meetings of members, secured and unsecured creditors under Section 230(1) are dispensed with and publication of notices is not required.

Filing of Form CAA-3 - Scheme of Amalgamation - Obligation of the applicant companies to submit statutory filings following dispensation of meetings. - HELD THAT: - Following dispensation of meetings, the Tribunal directed the applicant companies to proceed with statutory compliance by submitting applications to the Central Government and other statutory authorities in Form No.CAA-3 as required by the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 read with Section 230(5) of the Companies Act, 2013. This direction implements the procedural step necessary for onward statutory scrutiny despite the dispensation of meetings. [Paras 12]

Applicant companies must submit applications in Form No.CAA-3 to the Central Government and statutory authorities.

Service on the Official Liquidator under Section 230(5) - Scheme of Amalgamation - Requirement to serve notice upon the Official Liquidator and consequence of no response. - HELD THAT: - The Tribunal directed the Transferor Company to serve notice on the Official Liquidator pursuant to Section 230(5). The Tribunal further provided that if no response is received within 30 days, it will be presumed that the Official Liquidator has no objection to the proposed scheme, consistent with the procedural framework under the Rules and Section 230(5). [Paras 12]

Transferor Company to serve notice on the Official Liquidator; absence of response within 30 days will be treated as no objection.

Presentation of petition in Form CAA-5 for sanction - Scheme of Amalgamation - Next procedural step for sanction of the Scheme before the Tribunal. - HELD THAT: - The Tribunal directed the applicant companies to present a petition in Form No.CAA-5 for the sanction of the Scheme of Amalgamation, thereby requiring the parties to seek final sanctional hearing and formal approval under the Companies Act and the Rules after completing the specified statutory compliances. [Paras 12]

Applicants are to present a petition in Form No.CAA-5 for sanction of the Scheme of Amalgamation.

Final Conclusion: The Tribunal dispensed with calling the meetings and publication of notices for approval of the Scheme of Amalgamation on the basis of overwhelming affidavit consents; directed statutory filings in Form CAA-3, service on the Official Liquidator with the consequence of deemed no-objection after 30 days, and directed presentation of a petition in Form CAA-5 for sanction of the Scheme.

Revival and restoration of a company petition disposed of on settlement - power of the Tribunal under rule 11 of the NCLT Rules, 2016 to recall/restore - withdrawal of company petition following settlement and consequential right to revive - compatibility of NCLT's procedural powers with the Code - precedential effect of ESS Investments and Swiss Ribbons on restoration

Revival and restoration of a company petition disposed of on settlement - power of the Tribunal under rule 11 of the NCLT Rules, 2016 to recall/restore - The Applicant/Financial Creditor is entitled to seek restoration of a company petition disposed of on terms of settlement and the Tribunal has power to revive such petition under rule 11 of the NCLT Rules, 2016. - HELD THAT: - The Tribunal examined the settlement deed and the Adjudicating Authority's earlier order which disposed of CP (IB) No.389/2019 on the parties' settlement with liberty to report any default. Noting the Corporate Debtor's non-compliance with payment deadlines, the Financial Creditor moved for reporting the default and revival of the petition. The respondents contended that the Code does not provide for revival and that only a fresh petition could be filed. The Tribunal, however, followed the approach reflected in the order dated 31.01.2020 in ESS Investments which recognised that a party could seek recall of an earlier order and revival of a petition in appropriate circumstances. The Bench also treated the decision in Swiss Ribbons as validating the exercise of Tribunal's procedural powers, and observed that other benches have permitted revival where a petition was disposed as withdrawn after recording settlement terms. While prior authorities were cited to the contrary, the Tribunal held that rule 11 of the NCLT Rules, 2016 can be exercised for the limited purpose of reviving a petition disposed on settlement when the settlement is not honoured, and directed restoration of the petition to file for adjudication on merits. [Paras 14, 15]

MA No.3601/MB.II/2019 is allowed; CP (IB) No.389/MB.II/2019 is revived and restored to file and listed for hearing.

Final Conclusion: The application for restoration is allowed: the Tribunal exercised its power under rule 11 NCLT Rules, 2016 to revive CP (IB) No.389/MB.II/2019 which had been disposed on settlement, and directed the matter to be listed for further hearing.

Limitation under the Insolvency and Bankruptcy Code - Date of default criterion for initiation of CIRP - Acknowledgement of debt in balance sheets and section 18 of the Limitation Act - Binding effect of Supreme Court precedent on limitation (Babulal Vardharji Gurjar)

Limitation under the Insolvency and Bankruptcy Code - Acknowledgement of debt in balance sheets and section 18 of the Limitation Act - Date of default criterion for initiation of CIRP - Binding effect of Supreme Court precedent on limitation (Babulal Vardharji Gurjar) - Whether the section 7 petition is barred by limitation despite alleged acknowledgements of liability in the corporate debtor's balance sheets. - HELD THAT: - The Tribunal examined the date of default pleaded (21.09.2013) and the reliance placed by the Financial Creditor on entries in the corporate debtor's balance sheets for the years ending 31.03.2013 to 31.03.2018 as constituting acknowledgements that would extend limitation under section 18 of the Limitation Act. The Tribunal applied the binding law laid down by the Hon'ble Supreme Court in Babulal Vardharji Gurjar, which addressed the same contention and upheld the date-of-default approach to limitation under the Code, holding that continuous entries in balance sheets do not revive the right to initiate CIRP where the petition is otherwise time barred. In light of that precedent, and noting the parallel facts of this case, the Tribunal found the section 7 application fails the test of limitation and the authorities relied upon by the Financial Creditor could not be taken to displace the Supreme Court's decision. [Paras 8, 9]

The section 7 petition is barred by limitation and is rejected; the dismissal does not express any opinion on merits and the petitioner's remedies before other forums remain unimpaired.

Final Conclusion: The Tribunal, following the Supreme Court's decision in Babulal Vardharji Gurjar, holds that the section 7 petition is time barred despite alleged acknowledgements in balance sheets and rejects the petition while preserving the petitioner's rights before other fora.

Default for initiation of Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code - financial debt as defined in Section 5(8) of the Code - admissibility of Section 7 application on satisfaction of default (Innoventive principle) - limited scope at admission: disputes and guarantor objections not to be adjudicated - moratorium under Section 14 and exclusion of surety/guarantor assets from moratorium - appointment of Interim Resolution Professional and consequential public announcement

Default for initiation of Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code - admissibility of Section 7 application on satisfaction of default (Innoventive principle) - Application under Section 7 of the IBC by the financial creditor is admissible as there is established default by the corporate debtor. - HELD THAT: - The Tribunal examined the loan account statement and materials produced by the financial creditor and held that the corporate debtor did not deny the debt nor produce documents rebutting the claim. Applying the settled principle that the Adjudicating Authority must be satisfied only that a default has occurred and may admit the application unless incomplete, the Bench found that a default as defined under the Code exists and the application is complete. Consequently the Section 7 petition merits admission. [Paras 15, 16]

The Section 7 application is admitted against the corporate debtor on the ground of default.

Financial debt as defined in Section 5(8) of the Code - The nature of the claim is a financial debt within the meaning of the Code. - HELD THAT: - On perusal of the loan documents and account statement placed before the Tribunal, it was held that the liability arises from financial assistance granted by the bank and thus falls within the statutory definition of 'financial debt'. The Tribunal recorded that the elements necessary to characterise the claim as financial debt are satisfied. [Paras 15]

The claim is a financial debt under the Code.

Limited scope at admission: disputes and guarantor objections not to be adjudicated - moratorium under Section 14 and exclusion of surety/guarantor assets from moratorium - Objections raised by guarantors and other contentions concerning settlements, novation or forgery are not to be adjudicated at the admission stage; assets of guarantors remain outside the corporate debtor's moratorium as per the amended provision. - HELD THAT: - Relying on Supreme Court and appellate guidance, the Tribunal reiterated that at the stage of admitting a Section 7 petition the Adjudicating Authority's function is limited to satisfaction of default; third party contentions including guarantors' pleas, disputes over settlements or allegations of forgery are not for decision at admission. The Bench also clarified, by reference to the statutory scheme, that the moratorium operates against the corporate debtor and that assets of sureties/guarantors are outside the scope of moratorium under the relevant provision. [Paras 12, 13]

Guarantors' objections and contestations are not adjudicated at admission; moratorium does not extend to guarantors' assets.

Appointment of Interim Resolution Professional and consequential public announcement - An Interim Resolution Professional (IRP) is to be appointed and the statutory moratorium and ancillary directions shall follow upon admission. - HELD THAT: - The Tribunal accepted the nominee proposed by the financial creditor, recorded his Form 2 declaration, and appointed him as IRP to exercise the functions under the Code. The order directed immediate public announcement of the CIRP and prescribed the standard moratorium prohibitions and limited exceptions as provided by the Code and regulations. [Paras 17, 18, 19]

Mr. Raju Palanikunnathil Kesavan is appointed as IRP; moratorium and public announcement directions issued.

Final Conclusion: The Tribunal admitted the Section 7 application of the financial creditor against M/s Green Gateway Leisure Ltd. on the finding of default and that the claim is a financial debt, appointed an Interim Resolution Professional, and ordered the statutory moratorium and public announcement; contested defenses of guarantors and other factual disputes were not decided at the admission stage.

Financial debt under Section 5(8) of IBC - corporate guarantee and liability on invocation - disbursal against consideration for time value of money - co borrower/mortgage constituting financial debt - distinction between mortgage as third party security and guarantee

Financial debt under Section 5(8) of IBC - corporate guarantee and liability on invocation - disbursal against consideration for time value of money - Inclusion of amounts claimed by Oriental Bank of Commerce (now PNB) based on invoked corporate guarantees as financial debt for purposes of admission of claim and voting in the COC. - HELD THAT: - The Tribunal upheld the Adjudicating Authority's conclusion that where a financial creditor advanced funds to third parties (thus creating a disbursal carrying the consideration for the time value of money) and subsequently invoked a corporate guarantee executed by the corporate debtor, the guarantor's liability on such invocation constitutes an amount of liability in respect of a guarantee falling within Section 5(8)(i) of the IBC. The Tribunal distinguished the facts in Anuj Jain (where mortgage by the corporate debtor for a holding company's debt was held not to create a financial debt qua the mortgager) because there the transaction was collateral mortgage security without a direct disbursal to the corporate debtor; by contrast, in the present case the underlying loans were disbursed to third parties and carried the essential element of time value consideration, and the guarantees were executed and invoked, thus bringing the resulting liability within the definition of financial debt. The Tribunal also noted that absence of the principal debtor's signature on the guarantee document did not vitiate the guarantor's liability where the corporate debtor expressly guaranteed repayment and invocation had occurred. Applying these principles, the Tribunal found no error in admitting the bank's entire claim and using it to determine COC voting percentages. [Paras 28, 29]

The invocation based liability arising from the corporate guarantees admitted by the Resolution Professional is a financial debt under Section 5(8) and its admission for voting in the COC was legal and proper.

Co borrower/mortgage constituting financial debt - distinction between mortgage as third party security and guarantee - Admissibility of India Bulls Housing Finance Ltd.'s claim as a financial debt on the basis that the corporate debtor was a co borrower and had mortgaged property to secure the loan. - HELD THAT: - The Tribunal found no reason to interfere with the Adjudicating Authority's factual and legal conclusion that India Bulls' claim was properly admitted as financial debt. The record supported that the corporate debtor had stood as co borrower and had executed mortgage security in relation to the loan facility; accordingly, the claim was rightly treated and admitted as a financial debt for purposes of COC composition. The Tribunal observed that the Appellant had not demonstrated any error in the Adjudicating Authority's findings on these aspects. [Paras 10, 31]

The admission of India Bulls' claim as a financial debt and its inclusion for computing COC voting percentage was upheld.

Final Conclusion: The Appeal is dismissed. The inclusion of the bank's invoked corporate guarantee claim and India Bulls' co borrower/mortgage based claim as financial debts for admission and COC voting was held to be legally sustainable; there is no interference with the Impugned Order.

Acknowledgment under section 18 of the Limitation Act, 1963 - effect of entries in the company's balance-sheet as acknowledgment of debt - applicability of section 18 of the Limitation Act to insolvency proceedings - reconsideration by constitution of a five Member Bench

Acknowledgment under section 18 of the Limitation Act, 1963 - effect of entries in the company's balance-sheet as acknowledgment of debt - applicability of section 18 of the Limitation Act to insolvency proceedings - Section 18 of the Limitation Act, 1963 is not to be regarded as inapplicable to insolvency proceedings and entries in the balance-sheet may operate as acknowledgments for the purposes of section 18 subject to the pleadings and evidence. - HELD THAT: - The Tribunal considered the Supreme Court's decision in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries P. Ltd. and observed that that judgment does not lay down a categorical principle excluding section 18 from insolvency cases; rather, it emphasises that a party seeking extension of limitation must plead and prove the facts necessary to attract section 18. Reliance was placed on numerous High Court and Supreme Court authorities holding that an entry in a company's balance-sheet, though prepared pursuant to statutory obligation, can amount to an acknowledgment of liability within the meaning of section 18 and thereby give rise to a fresh period of limitation. The Tribunal was not convinced by the contention that statutory compulsion to prepare balance-sheets necessarily precludes them from constituting voluntary acknowledgments under section 18 and noted authorities to the contrary. For these reasons the Tribunal rejected the submission that section 18 is inapplicable to insolvency proceedings in the abstract and treated the question as one requiring authoritative reconsideration. [Paras 27, 28, 29]

The Tribunal held that it could not accept the submission that section 18 is inapplicable to insolvency cases and that the question of acknowledgment by entries in balance-sheets must be examined in light of pleadings, evidence and settled precedent.

Reconsideration by constitution of a five Member Bench - effect of balance-sheet entries as acknowledgment of debt - Referral of the earlier five-Member Bench decision in V. Padmakumar v. SASF [2020] 221 Comp Cas 153 (NCLAT) to a Constitution of five hon'ble Members for reconsideration. - HELD THAT: - The Three-Member Bench identified material conflict between the majority view in V. Padmakumar and consistent decisions of the Supreme Court and several High Courts on whether balance-sheet entries amount to acknowledgments under section 18. The Tribunal recorded specific reasons for referral including (i) established authorities treating balance-sheet entries as acknowledgments, (ii) the absence of reasoned disagreement in the majority view of V. Padmakumar, (iii) the statutory character and sanctity of financial statements, and (iv) admissibility and finality protections under the Companies Act. Having regard to the apparent divergence and the importance of the question, and following the discipline of referring a matter of such significance to a larger Bench, the Tribunal directed that V. Padmakumar be placed before the Acting Chairperson for constitution of an appropriate five-Member Bench and referred the matter accordingly. [Paras 1, 30, 31, 33]

The Tribunal referred the question for reconsideration by a five-Member Bench of the Appellate Tribunal and directed registry action to place the reference before the Acting Chairperson for constitution of the Bench.

Final Conclusion: The Three-Member Bench declined to accept the submission that section 18 of the Limitation Act is inapplicable to insolvency proceedings and, on account of the contrary authorities and the importance of the question, referred the earlier five-Member Bench decision in V. Padmakumar v. SASF for reconsideration by a five-Member Bench; further proceedings in the appeal are to await the outcome of that reference.

Financial debt - share application money - definition of deposit under Companies (Acceptance of Deposit) Rules, 2014 - maintainability of petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 - jurisdiction to adjudicate dishonour of negotiable instruments

Financial debt - share application money - definition of deposit under Companies (Acceptance of Deposit) Rules, 2014 - maintainability of petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 - Whether the amount paid by the applicant as share application money constitutes a "financial debt" under the Code and whether the Section 7 petition is maintainable. - HELD THAT: - The Tribunal examined the nature of the payments made by the applicant and the statutory classification of "deposit" under the Companies (Acceptance of Deposit) Rules, 2014, which expressly excludes amounts received pursuant to subscription to securities, including share application money pending allotment, so long as appropriated only against allotment. The applicant accepted receipt of principal repayment but claimed unpaid interest. The Respondent produced evidence of repayment of the principal pursuant to an earlier settlement recorded before the NCLT. The Tribunal found no agreement or contractual term evidencing that the payments were advanced as a loan or with a time value consideration such that they fall within the definition of "financial debt" in Section 5(8) of the Code. In the absence of any contractual undertaking to pay interest or any characterization of the transaction as a loan, the share application money could not be treated as a financial debt recoverable under Section 7. Applying these legal principles to the material on record, the Tribunal concluded that the claim does not qualify as a financial debt and the Section 7 petition was therefore not maintainable. [Paras 5, 7]

The amounts paid as share application money do not constitute a financial debt under the Code; the Section 7 petition is not maintainable and is dismissed.

Jurisdiction to adjudicate dishonour of negotiable instruments - Whether the Tribunal is the appropriate forum to adjudicate issues arising from the dishonour of the cheque issued as alleged interest payment. - HELD THAT: - The applicant relied on a cheque alleged to represent payment of interest which was dishonoured; the Respondent contended the cheque was lost and a police complaint was lodged. The Tribunal observed that disputes relating to negotiable instruments, including dishonour of cheques, do not fall within the NCLT's adjudicatory ambit under the Code and declined to adjudicate questions arising out of the negotiable instrument. That factual and legal controversy concerning the cheque's misuse or dishonour is outside the scope of the insolvency petition and must be pursued before the appropriate forum. [Paras 6]

Tribunal is not the correct authority to adjudicate matters related to dishonour or misuse of negotiable instruments; those issues are outside the present proceeding.

Final Conclusion: The Section 7 petition was dismissed as the claim asserted (share application money and alleged interest) does not constitute a financial debt under the Insolvency and Bankruptcy Code, 2016; questions relating to the dishonour or misuse of the cheque are not within the Tribunal's jurisdiction.

Application for taking additional documents on record - advance copy and opportunity to file reply - for admission (after notice)

Application for taking additional documents on record - advance copy and opportunity to file reply - Permission to file an application for taking additional documents on record and the procedure to be followed. - HELD THAT: - The Tribunal granted the appellant leave to file an application seeking to place additional documents on record. The appellant was permitted to file that application within one week. In order to protect the adversarial rights of the respondents, the appellant was directed to supply an advance copy of the application and documents to the respondents so that they may have a fair opportunity to file a reply. The order balances the appellant's request for taking additional documents on record with the respondents' right to be heard on the application.

Prayer to file an application for additional documents allowed subject to filing within one week and serving an advance copy on the respondents to enable them to file a reply.

For admission (after notice) - Listing of the appeal for further hearing after issuance of notice. - HELD THAT: - Having addressed the interlocutory procedural request, the Tribunal proceeded to fix the matter for the next stage of adjudication. The appeal was placed on the board for 'Admission (After Notice)' on the specified date so that substantive consideration may follow after compliance with the directions and service of notices.

Appeal listed 'For Admission (After Notice)' on 12th October, 2020.

Final Conclusion: The Tribunal permitted the appellant to file an application for placing additional documents on record within one week with an obligation to supply an advance copy to the respondents for filing a reply, and listed the appeal 'For Admission (After Notice)' on 12th October, 2020.

Competence of applicant to file under Section 7 - existence of a disputed debt vis-a -vis Financial Creditor - acknowledgement of debt in company's balance sheet and its effect on limitation - effect of pendency of recovery/proceedings before other fora on initiation of CIRP - admissibility of Section 7 application and commencement of Corporate Insolvency Resolution Process - operation of moratorium on admission under Section 14

Competence of applicant to file under Section 7 - The Financial Creditor had requisite authorization to file the Section 7 application through its authorised representative. - HELD THAT: - The Tribunal examined the Board resolution dated 05.08.2019 authorising the Deputy Manager (Legal) to represent the Financial Creditor before various forums and the Power of Attorney executed in favour of the firm acting for the Financial Creditor. On this basis the objection that the application was not filed by a competent person was rejected as incongruous and without merit. [Paras 22, 25]

Objection regarding competency of the applicant overruled; the application is filed by a competent authorised person.

Existence of a disputed debt vis-a -vis Financial Creditor - The existence of a dispute pleaded by the Corporate Debtor did not preclude admission of the Financial Creditor's Section 7 application. - HELD THAT: - Relying on the NCLAT precedent cited in the record, the Tribunal observed that existence of a dispute raised by the Corporate Debtor is not a relevant bar for a Financial Creditor's application under Section 7. The contention that the debt was disputed was therefore held to be without merit. [Paras 26]

Contention of disputed debt rejected as a ground to refuse admission of the Section 7 application.

Acknowledgement of debt in company's balance sheet and its effect on limitation - Entries in the Corporate Debtor's balance sheets acknowledging the debt extended the period of limitation and the Section 7 application was not time barred. - HELD THAT: - The Tribunal, having regard to judicial authorities cited, held that the Corporate Debtor's repeated entries in its balance sheets from 2012 to 2019 acknowledging amounts due to the Financial Creditor constituted acknowledgements of debt which extended the limitation period. Consequently, the plea of limitation raised by the Corporate Debtor failed. [Paras 20, 27]

Limitation objection overruled; the application is not barred by limitation.

Effect of pendency of recovery/proceedings before other fora on initiation of CIRP - legally recoverable debt - Pending proceedings before other fora (Revenue Recovery, DRT, writ petitions, SARFAESI/DRT) did not preclude initiation of CIRP and the Tribunal found the debt to be legally recoverable. - HELD THAT: - The Tribunal noted the history of Revenue Requisition notices and writ petitions but observed that pendency of proceedings before other fora is not a bar to filing under Section 7. After perusal of loan documents and the course of actions taken, the Tribunal concluded there was default and that the debt was legally recoverable by the Financial Creditor; hence the Corporate Debtor's contention that it was not a corporate debtor was rejected. [Paras 5, 10, 28]

Pendency of other proceedings does not bar Section 7; the debt is legally recoverable and the Corporate Debtor's objection rejected.

Admissibility of Section 7 application and commencement of Corporate Insolvency Resolution Process - operation of moratorium on admission under Section 14 - The Section 7 application satisfied the statutory requirements and was admitted; an Interim Resolution Professional was appointed and moratorium under Section 14 was declared effective from the date of the order. - HELD THAT: - Having found that the Financial Creditor qualified as such and that there was a default and legally recoverable financial debt, the Tribunal held the application complete and liable to be admitted under Section 7(4) of the Code. The Tribunal appointed the Financial Creditor's proposed Interim Resolution Professional after receipt of the requisite declaration and directed compliance with public announcement, duties of the IRP, and continued supply of essential services during the moratorium. [Paras 33, 34, 35, 36, 37]

Application admitted; CIRP commenced; IRP appointed; moratorium under Section 14 operative from date of order.

Final Conclusion: The Tribunal admitted the Financial Creditor's Section 7 application against Sanchez Healthcare Private Limited, appointed the proposed Interim Resolution Professional, directed compliance with statutory steps including public announcement and duties of the IRP, and declared the moratorium operative from the date of the order.

Interest under Section 11-AB on differential duty arising from retrospective price escalation - liability to pay interest on differential duty or unpaid service tax detected by revenue - payment of differential duty as admission attracting consequential interest - validity of demand/notice under Section 87 for deposit of interest

Interest under Section 11-AB on differential duty arising from retrospective price escalation - liability to pay interest on differential duty or unpaid service tax detected by revenue - validity of demand/notice under Section 87 for deposit of interest - Lawfulness of notices under Section 87 directing deposit of interest on differential rates for washed coking coal for April 2011 to March, 2012 - HELD THAT: - The Court held that the legal position settled by the larger Bench of the Supreme Court in Steel Authority of India Limited v. Commissioner of Central Excise (paras 67, 69 and 71) governs the present controversy. Where valuation was provisional because price was variable under an escalation clause and subsequently finalized retrospectively, the liability to pay differential duty crystallises with retrospective effect and interest is payable as provided under Section 11-AB (now incorporated in law as applicable) from the time the duty was due. Payment of differential duty or unpaid service tax when detected by revenue amounts to acknowledgment of liability and attracts consequential interest. Applying that ratio, a demand by the revenue for deposit of arrears of interest (even where the enhanced rates were fixed retrospectively after initial billing) is sustainable and the notices under Section 87 seeking deposit of interest cannot be quashed on the ground that no earlier notice for duty was raised. The court refused the petitioner's contention that interest could not be demanded in the absence of a prior demand for duty, noting that in cases of retrospective escalation the duty and interest relate back to the period for which the duty is determined. [Paras 8, 9]

The writ petition challenging the notices under Section 87 insofar as they direct deposit of interest on differential rates for April 2011 to March, 2012 is dismissed.

Final Conclusion: Applying the Supreme Court's authoritative reasoning on retrospective escalation of price and interest under Section 11-AB, the High Court dismissed the petition and upheld the departmental notices demanding deposit of arrears of interest for the period April 2011 to March, 2012.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - discharge certificate effect - deemed withdrawal under section 127(6) of the Finance Act (No.2), 2019

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - discharge certificate effect - deemed withdrawal under section 127(6) of the Finance Act (No.2), 2019 - Whether the appeals are liable to be treated as withdrawn upon grant of discharge certificates under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. - HELD THAT: - The Bench recorded that the assessees had applied under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and that discharge certificates had been issued to them. In view of the statutory consequence provided by section 127(6) of the Finance Act (No.2), 2019, the filing of applications under the Scheme and issuance of discharge certificates operate to treat the departmental appeals as withdrawn. The Tribunal accordingly disposed of the matters by giving effect to the deemed withdrawal mandated by the provision.

Appeals dismissed as deemed to have been withdrawn on account of discharge certificates issued under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019.

Final Conclusion: The appeals were dismissed because the assessees availed the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and discharge certificates were issued, resulting in the appeals being treated as withdrawn under section 127(6) of the Finance Act (No.2), 2019.

Retrospective exemption - obligation to give effect to an exemption certificate - limitation and sufficient cause under Section 5 of the Limitation Act, 1963 - alternative remedy - power of revision and suo motu revision by the Commissioner

Retrospective exemption - obligation to give effect to an exemption certificate - Exemption certificate granted with retrospective effect entitled the petitioner to 100% exemption and required setting aside of the impugned assessment orders for the four assessment years 2007-08 to 2010-11. - HELD THAT: - The State admitted issuance of eligibility certificates dated 13/02/2017 granting 100% exemption retrospectively (w.e.f. 23/7/2004) under the scheme and Section 10 of the Entry Tax Act. Once the certificate was validly granted and not withdrawn or shown to be erroneous, the Commercial Tax Department was under an obligation to give effect to it and grant exemption of entry tax, interest and penalties for the period covered. The petitioner made multiple applications immediately after grant of the certificate which remained unacted upon. The Court found that the Department's failure to reassess and to extend the benefit in respect of the four assessment years 2007-08 to 2010-11 was erroneous and such assessment orders deserved to be set aside. Consequential relief including refund of amounts recovered was directed. [Paras 11, 15, 17]

The impugned assessment orders for 2007-08 to 2010-11 are set aside and the respondents are directed to confer benefits in terms of the exemption certificate and refund amounts recovered.

Limitation and sufficient cause under Section 5 of the Limitation Act, 1963 - alternative remedy - power of revision and suo motu revision by the Commissioner - The Department's plea of time bar and availability of alternative remedy did not preclude relief because the exemption certificate was granted in 2017 and the petitioner had sufficient cause for seeking relief; the Commissioner could exercise revisionary powers. - HELD THAT: - The Court accepted that the cause of action for claiming the benefit arose on issuance of the retrospective exemption certificate on 13/02/2017. Section 51 of the M.P. VAT Act incorporates Section 5 of the Limitation Act, permitting extension where sufficient cause is shown. Given the timing of the certificate and the petitioner's prompt applications, the petitioner had sufficient cause for condonation of delay. Further, the Commissioner possessed revisionary powers, including suo motu revision under the VAT Act, and could have processed reassessments within the statutory framework; mere availability of an alternative remedy did not absolve the Department from implementing the certificate or from acting upon the petitioner's claims. [Paras 12, 13, 14, 15]

Limitation and the availability of alternative remedies did not bar the petitioner; the Department should have exercised its revisionary powers and given effect to the exemption certificate.

Final Conclusion: Writ petition allowed: respondents directed to implement the Entry Tax Exemption Certificate dated 13/02/2017 in full, the assessment orders for 2007-08 to 2010-11 are set aside and the Department shall refund amounts recovered within 90 days by passing consequential orders.

Penal interest - penalty - consideration of objections - duty to record reasons - personal hearing - procedural requirement under Rule 24(4) of the A.P. VAT Rules, 2005

Penal interest - penalty - consideration of objections - duty to record reasons - Validity of the impugned orders levying penal interest and penalty where the assessing authority did not deal with the objections filed by the petitioner. - HELD THAT: - The Court found that the proceedings dated 21.08.2020 levying penal interest and penalty were passed without any discussion of or reference to the detailed objections filed by the petitioner on 21.11.2019 and the reply dated 27.12.2019. The orders merely stated that the petitioner's contention is not considered, which did not satisfy the statutory and judicial requirement that an assessing authority, when passing assessment or penal orders, must refer to the explanation submitted by the dealer in detail and record reasons if that explanation is not accepted. Prior orders of this Court and authority cited (including the view in earlier writs) reinforce that failure to consider objections and to record reasons renders such orders unsustainable. For these reasons the impugned Penal Interest Order and Penalty Order could not be sustained. [Paras 8, 9, 11]

The impugned orders levying penal interest and penalty are set aside for non-consideration of the petitioner's objections and failure to record reasons.

Personal hearing - reasoned order - procedural requirement under Rule 24(4) of the A.P. VAT Rules, 2005 - Relief required and directions on remand following setting aside of the impugned orders. - HELD THAT: - Having set aside the impugned orders, the Court directed that the matter be remitted to the assessing authority for fresh consideration. On remand the authority must consider the objections dated 21.11.2019 and 27.12.2019, afford the petitioner a personal hearing, and thereafter pass a reasoned order in accordance with law and communicate it to the petitioner. The Court applied its earlier reasoning that procedural safeguards (including the requirements of Rule 24(4) as applicable) and the obligation to record reasons are integral to the validity of assessment and penal orders. [Paras 3, 4, 11]

Matter remanded to the first respondent to consider the objections, provide personal hearing, pass a reasoned order in accordance with law and communicate it to the petitioner.

Final Conclusion: Writ petition allowed; the Assessment Proceedings dated 21.08.2020 levying penal interest and the Assessment Proceedings dated 21.08.2020 levying penalty are set aside and the matters are remanded to the first respondent to consider the objections, afford personal hearing, pass a reasoned order in accordance with law and communicate the same to the petitioner; no costs.

Principles of natural justice - Right to personal hearing - Jurisdiction - Maintainability of writ under Article 226 - Availability of alternative remedy by way of statutory appeal - Concessional tax rate under Section 6(1) of the KVAT Act

Principles of natural justice - Right to personal hearing - Whether the assessment order dated 02.03.2020 was passed in breach of the principles of natural justice by not granting an opportunity of personal hearing. - HELD THAT: - On plain perusal of the impugned order the Court found that the assessee filed a reply on 28.02.2020 and that the Assistant Manager of the petitioner appeared and argued the matter, as recorded in the assessment order. The writ petition did not aver that no personal hearing took place. Where the order on its face records that a hearing was afforded and a reply was filed, a prima facie case of denial of natural justice is not established. The Court emphasised that interference under Article 226 is warranted when an order is prima facie without jurisdiction or shows non-adherence to natural justice; that threshold was not met here.

No breach of the principles of natural justice or denial of personal hearing was established; the challenge on that ground fails.

Jurisdiction - Maintainability of writ under Article 226 - Availability of alternative remedy by way of statutory appeal - Whether the writ petition was maintainable notwithstanding the existence of an alternative remedy of appeal under the KVAT Act. - HELD THAT: - The Court noted that the assessment order is appealable under Section 55 of the erstwhile KVAT Act. Given the absence of a jurisdictional defect or proven breach of natural justice on the face of the order, there was no basis to exercise extraordinary writ jurisdiction. The petitioner was therefore not entitled to bypass the statutory remedy, and could, if so advised, challenge the assessment by preferring the prescribed appeal.

Writ petition dismissed as alternative statutory remedy by way of appeal is available and no exceptional circumstances for invoking Article 226 were shown.

Concessional tax rate under Section 6(1) of the KVAT Act - Whether the assessment erred in not applying the claimed concessional rate for sale of used motor vehicles under Section 6(1) of the KVAT Act. - HELD THAT: - The petitioner alleged incorrect charging of tax (non-application of concessional rate). The Court did not adjudicate this grievance on merits because it found no jurisdictional infirmity or breach of natural justice that would warrant writ relief; the correctness of tax-rate application is a matter accessible through the statutory appeal process. Accordingly the substantive contention regarding application of the concessional rate remains to be addressed in the appeal.

Substantive grievance about tax rate not decided on merits; petitioner permitted to raise the issue in the statutory appeal.

Final Conclusion: The writ petition challenging the assessment order dated 02.03.2020 (AY 2013-14) is dismissed: no prima facie violation of natural justice or jurisdiction was found on the face of the order, and the petitioner is at liberty to avail the statutory appeal under the KVAT regime.

Extension of tenure of adjudicatory members pending fresh appointments - interim relief of continuity of service where new service rules are invoked - age of superannuation under service rules and competing rules - duty to fill vacancies and administrative status report on appointments

Extension of tenure of adjudicatory members pending fresh appointments - Extension of the term of Shri O.P. Gupta as Member (Judicial), State Consumer Disputes Redressal Commission, Delhi. - HELD THAT: - The Court granted an interim extension of Shri O.P. Gupta's term for a further period of six months while appointments against vacant posts in the Consumer Forum are pursued. The order is an interim administrative relief to maintain functioning of the forum until respondents address the vacancy situation and further directions are issued.

The term of Shri O.P. Gupta is extended for six months.

Age of superannuation under service rules and competing rules - interim relief of continuity of service where new service rules are invoked - intervention allowed - Intervention by the applicant (Member (Technical), CESTAT) and interim continuation of the applicant in office despite a proposed retirement date under the earlier Rules. - HELD THAT: - The applicant, appointed as Member (Technical) in CESTAT on 29.3.2018, faces retirement computed under the earlier Rules where superannuation is at 62. The applicant contends entitlement to continue under the Tribunal and Authorities Rules, 2020 which provide for a different term. The Court allowed the application to intervene and, as an interim measure, extended the applicant's term for three months to preserve status pending consideration of the entitlement under the 2020 Rules and related adjudication.

Intervention allowed; the applicant's term is extended for three months.

Duty to fill vacancies and administrative status report on appointments - Direction to the respondents/Registry to furnish a status report regarding appointments to the posts of Members of the Central Administrative Tribunal. - HELD THAT: - Counsel represented that selections have been completed and names recommended by the Selection Committee but appointments have not been made. The Court directed that a status report on appointments to the posts of Members of the Central Administrative Tribunal be filed before the next date of hearing to enable oversight of the administrative process for filling vacancies.

Respondents directed to file a status report on appointments to Members of the Central Administrative Tribunal; listed for further hearing.

Final Conclusion: Interim orders were passed: the term of Shri O.P. Gupta is extended for six months; the CESTAT Member (Technical) who claims entitlement under the 2020 Rules is granted intervention and a three month extension; and the Registry/respondents are directed to file a status report on appointments to Members of the Central Administrative Tribunal, with further listings provided.