Thus, we are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainant’s case in the realm of grave doubt on which the case of conviction and sentence cannot be sustained.
There is sufficient material on record, and the Memorandum and Articles of Association of the appellant company make it abundantly clear, that the same is a Government company and is a subsidiary of IBP, which is also a Government company. More than 61.8 per cent shares of the appellant company are held by IBP, a Government company.
Before adverting to the various contentions raised in challenging the vires of Section 11AA of the SEBI Act, we feel that it is worthwhile to state and note certain precautions to be observed whenever a vires of any provision of law is raised before the Court by way of a writ petition. It will be worthwhile to lay down certain guidelines in that respect, since we have noticed that on very many occasions a challenge to a provision of law,
The conclusion that mere non-payment of duties is equivalent to collusion or wilful misstatement or suppression of facts is untenable. If that were to be true, then, it was beyond understanding, which form of non-payment would amount to ordinary default ? Construing mere non-payment as falling under categories of ‘suppression’, ‘wilful misstatement’, etc. would leave no situation for which, ordinary limitation period may apply.
It has been submitted by Mr. Banerji, learned senior counsel, that if the Company Court as well as the DRT can exercise jurisdiction in respect of the same auction or sale after adjudication by the DRT, there would be duality of exercise of jurisdiction which the RDB Act does not envisage. By way of an example, the learned senior counsel has submitted that there are some categories of persons who can go before the DRT challenging the sale
According to Mr. Diwan, no real basis for the Adjudicating Authority and the Tribunal to hold that Bountiful was a paper company and that it was being controlled by the Desais from India. Mr. Diwan made a strenuous attempt to persuade us to reverse the findings of fact recorded by the Adjudicating Authority and the Tribunal on this aspect. We regret our inability to do so. Whether or not Bountiful Ltd. is a paper Company and whether or not it was controlled and operated by the appellants is essentially a question of fact to be determined on the basis of the material collected in the course of the investigation. The Adjudicating Authority and Tribunal have answered that question in the affirmative taking into consideration the statements made by the appellants as also the documents that were recovered from their premises.
The Court noted conflicting precedents on whether a High Court can entertain review after dismissal of an SLP. It referred the issue to a larger bench to clarify the doctrine of merger under Article 136.
As CA certificate did not conform to the provisions contained in the regulations which requires that the certificate of the Chartered Accountant should be in confirmation of the Audited Accounts of the promoters/applicant for the five years preceding the date of the application. We are unable to approve the observations made by SAT that “neither the regulations nor the eligibility criteria in Form A requires the applicant to produce the annual accounts of the promoter.”
Applying the above principles to the case at hand Section 29 of the RDDB Act incorporates the provisions of the Rules found in the Second Schedule to the Income Tax Act for purposes of realisation of the dues by the Recovery Officer under the RDDB Act.
It is settled law that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful misstatement, suppression of facts or contravention of any provision or rules.
