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Case Laws
Showing 41 to 60 of 943 Records
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2020 (8) TMI 904 - SC ORDER
Initiation of Corporate Insolvency Resolution Process for resolution - approval of any plan of a third party (Resolution Applicant) is not required - It was held by NCLAT, New Delhi that as it is found very difficult to follow the process as in normal course is followed in a Corporate Insolvency Resolution Process, we are of the view, that a ‘Reverse Corporate Insolvency Resolution Process’ can be followed in the cases of real estate infrastructure companies in the interest of the allottees and survival of the real estate companies and to ensure completion of projects which provides employment to large number of unorganized workmen.
HELD THAT:- There are no ground to interfere with the impugned orders passed by the National Company Law Appellate Tribunal.
Appeal dismissed.
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2020 (8) TMI 903 - DELHI HIGH COURT
‘Specified income’ u/s 10(46) - petitioner states that the petitioner has made an application as far back as 07th February, 2014 for Notification of its income under Section 10(46) of the Act, however no decision in this regard has been taken by the respondent No. 2. - HELD THAT:- As in the case of a similarly placed authority i.e. Greater Noida Industrial Development Authority vs. Union of India and Others, this Court [2018 (3) TMI 227 - DELHI HIGH COURT] has held that the activities of Greater Noida Authority are not commercial activity within the meaning of Clause (b) to Section 10(46) of the Act. He states that an appeal filed by the Revenue against the said order has been dismissed by the Supreme Court.
Also pointed out that vide Notification dated 23rd June, 2020 the respondent has notified Greater Noida Industrial Development Authority under Section 10(46) of Act.
Since the petitioner’s representations dated 07th February, 2014, 19th June, 2018 and 6th January, 2020 have not been decided till date, we dispose of the present writ petition and pending application by directing the respondent No. 2 to decide the petitioner’s applications seeking exemption under Section 10(46) of Act within twelve weeks in accordance with law.
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2020 (8) TMI 902 - PUNJAB & HARYANA HIGH COURT
Seeking grant of Regular Bail - three separate FIRs have been registered - Sections 420, 467, 468, 471 of IPC - HELD THAT:- The custody in the present case is similar to the custody in the said case and the stage of the trial is also similar. Thus, the petitioner may be granted concession of regular bail.
The petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned.
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2020 (8) TMI 901 - SC ORDER
CENVAT Credit - input services - services of outward transportation - denial of credit on the ground that these services have been availed beyond the factory premises and therefore, the said services are not covered under the main or the inclusive part of the input service - It was held by Madhya Pradesh High Court that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer’s premises was not admissible to the respondent.
HELD THAT:- Issue notice, returnable in four weeks.
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2020 (8) TMI 900 - MADRAS HIGH COURT
Principles of natural justice - grant of opportunity of hearing, when request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person - Section 75(4) of the Tamil Nadu Goods and Service Tax Act 2017 - HELD THAT:- A reading of Section 75(4) of TNGST Act shows that after the explanation is received from the writ petitioners, the authority must apply their mind and if they contemplate an adverse decision, then they must provide an opportunity of hearing. Therefore, issuing a personal hearing notice even prior to the receipt of the explanation cannot be said to be compliance of the aforesaid statutory requirements. That stage would arise only after the authority prima facie considers the explanation and contemplates an adverse decision.
Since there is a clear violation of the aforesaid requirement, the orders impugned in the writ petitions stand quashed and the writ petitions are allowed. The matters are remitted to the file of the respondents to pass orders afresh in accordance with law - appeal allowed by way of remand.
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2020 (8) TMI 899 - MADRAS HIGH COURT
Dishonor of Cheque - non-impleading the partnership firm as an accused - cheque was issued by the partnership firm - respondent did not issue any statutory notice to the partnership firm - HELD THAT:- The cheque was issued on behalf of partnership firm, namely Sanjey Heavy Engineering partnership firm. Whereas, the respondent caused statutory notice only to the partner who signed the cheque, namely the petitioner herein. Admittedly, the respondent did not issue any notice to the partnership firm and also did not implead the partnership firm as an accused in the complaint lodged for the offences under Section 138 of NI Act. Even according to the respondent, the partnership firm purchased materials and issued cheque towards part payment of the balance amount. Therefore, the complaint impugned is not at all maintainable as against the partner without impleading the partnership firm as an accused.
In the case on hand, admittedly the alleged cheque was issued by the partnership firm and the respondent did not issue any statutory notice to the partnership firm and also did not implead the partnership firm as an accused. There are two partners in the firm, in which the petitioner is being one of the partners only impleaded as an accused.
Petition allowed.
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2020 (8) TMI 898 - SC ORDER
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and default - applicability of time Limitation - it was held by Tribunal that The Adjudicating Authority erred in dismissing the Application under Section 7 of the IBC.
HELD THAT:- There are no ground to interfere with the impugned order passed by the Tribunal.
Appeal dismissed.
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2020 (8) TMI 897 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH
Seeking approval of the Resolution Plan - Section 31 of I&B Code, read with regulation 39, of the Insolvency and Bankruptcy Board of India, (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- In respect of compliance of Section 30(2)(a), of the Code, it is seen that there is a provision in the resolution plan Chapter VI clause 6.1 provides for payment of CIRP costs in priority over payments to any other creditors. Be that as it may it is made clear that Insolvency Resolution Process cost shall be paid in its entirety by the resolution applicant in priority to other debts of the corporate debtor - As regards compliance of clause (b) of Section 30 (2) of the Code, the Resolution Professional has certified that clause 6.20f the resolution plan provides for the payment of the debts of operational creditors in such manner as may be specified by the Board (IBBI) which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under Section 53.
There appears to be no discrimination in the resolution plan in respective class of creditors, as same treatment is provided to similarly situated each class of creditors. So long as the provisions of the Code and the Regulations have been met, it is the commercial wisdom of the requisite majority of the Committee of Creditors which is to negotiate and accept a resolution plan, which may involve differential payment to different classes of creditors. Needless to say, that the ultimate discretion of what to pay and how much to pay each class or subclass of creditors is with the Committee of Creditors. Equitable treatment has been accorded to each creditor depending upon the class to which it belongs.
It is seen that clause (b) of sub-section (2) of Section 30 of the Code stands satisfied. In terms of Section 30(2)(c), the Resolution Plan provides for management of affairs of the corporate debtor after approval of the Resolution Plan. The management of the affairs and control of the business of the corporate debtor after approval of the Resolution Plan has been provided at clause 10.3 of the Resolution plan which, inter alia, provides that the Company shall continue as a going concern and operate in its normal course of business upon implementation of the Resolution Plan.
Chapter 10 clause IV of the Resolution Plan provides for adequate means for supervising its implementation that fulfills the requirement envisaged by Section 32(2)(d) of the Code. It has been stated that one representative of Lenders alongwith two representatives of resolution applicant shall act as the monitoring agency.
The Resolution Plan is approved - application allowed.
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2020 (8) TMI 896 - ITAT MUMBAI
Reopening of assessment u/s 147 - disallowance of depreciation and disallowance of expenditure incurred for increase of capital respectively - HELD THAT:- AO has passed the original assessment order after taking into consideration each and every detail/explanation furnished by the assessee in response to the notice issued or query raised by him during the course of assessment proceedings. It can further be concluded that the AO had no tangible material for forming the belief that the income of the assessee has escaped assessment. Hence, in our considered opinion since the AO has initiated the reassessment proceedings on the basis of the material already placed on record by the assessee during assessment proceedings, the action of the AO amounts to change of opinion which is not permissible under law.
In the case of CIT vs. Kelvinator of India Ltd [2010 (1) TMI 11 - SUPREME COURT] has held that post 01-04-1989, power of AO to reopen u/s 147 is much wider, however, the AO has no jurisdiction to reopen assessment on the basis of mere change of opinion. Powers u/s 147 of the Act can be exercised by the AO provided there is tangible material to come to the conclusion that there is escapement of income from assessment. In our considered view, the AO had no tangible material to come to the conclusion that income of the assessee has escaped assessment.
Thus we hold that since the AO had initiated reassessment proceedings in the present case on the basis of change of opinion, the Ld. CIT(A) has wrongly upheld the action of the AO. We, therefore, allow the legal ground raised by the assessee and set aside the order passed by the Ld. CIT(A) holding the notice u/s 148 read with section 147 of the Act and the subsequent proceedings as void ab initio.- Decided in favour of assessee.
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2020 (8) TMI 895 - SC ORDER
Mining lease - levy of service tax - royalty - whether the royalty under the Act of 1957 is a “consideration” or not and further if that is “consideration”, then what would be the effect pertaining to payment of service tax? - HELD THAT:- Issue notice on the application for stay as well as on the Writ Petition returnable on 28th September, 2020.
List along with SLP(C) No. 37326 of 2017.
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2020 (8) TMI 894 - MADRAS HIGH COURT
Seeking waiver of interest, penalty and the amount towards non-productions of 'C' forms - HELD THAT:- Insofar as the favourable recommendation towards waiver of the interest and penalty, the petitioner herein may not have any further grievance, since the same is under active consideration before the Waiver Committee. Hence, it would be appropriate to close these writ petitions, insofar as these two heads are concerned, with liberty to the petitioner to challenge any adverse findings made by the Waiver Committee, in this regard.
Refusal to recommend the waiver of the amount relating to non-submission of 'C' forms - HELD THAT:- The BIFR order dated 17.10.2008 in paragraph 10.(B)8 has ordered for exemption in favour of the company from all penalties, penal charges, including interest, interest on interest etc., and all other levies of such nature levied or leviable for late payments of sales tax, late filing of returns etc. As such, the department may not be justified in rejecting such a finding of the BIFR, on the ground that there is no proof to support the loss of records and thereby defy the orders of BIFR - Even assuming that such records are available, the department may not have any option except, to exempt the company for such an amount, which pertains to the non-submission of 'C' forms, in view of the orders of BIFR. In this regard, if the petitioner is granted liberty to approach the Government with a representation seeking for such a waiver, the ends of justice could be secured.
The petitioner is granted liberty to make a representation to the first respondent seeking for waiver of the amount of ₹ 80,42,027/- relating to non-submission of 'C' forms for the years 1994-95, 1995-96, 1998-99 and 2000-2001 and on receipt of such a representation, the first respondent shall consider the same and take appropriate course of action - Petition disposed off.
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2020 (8) TMI 893 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Prayer for extension of time by exempting Covid period i.e. from 23rd March to 31st August 2020 - HELD THAT:- It is found that the 180 days is expiring on 21st August 2020. As per the provision the RP is entitled for further 90 days. Instead of exempting the period of lockdown, when 90 days is still in hand, the RP is directed to complete the work within said 90 days. It is pertinent to mention herein that the lockdown period is from 23 March 2020 till 29th May 2020 and hence, exemption as Sought for 160 days cannot be granted.
In view of the above further 90 days is allowed as per the provision of the IB Code to the RP to complete CIRP beyond 180 days - the instant application is disposed of.
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2020 (8) TMI 892 - ITAT MUMBAI
TP Adjustment - comparability of a single comparable viz. Axis Integrated Systems Ltd. - HELD THAT:- In case of Arkay Logistics Ltd. [2019 (11) TMI 1075 - ITAT MUMBAI] the Tribunal, while examining the comparability of this very company has also found it to be functionally dissimilar to a routine marketing service provider. Though, the aforesaid decisions pertain to the assessment year 2013–14, however, the material facts on the basis of which such decisions have been rendered are no different from the facts involved in the impugned assessment year insofar as it relates to this comparable.
We hold that Axis Integrated Systems Ltd. cannot be treated as a comparable to the assessee, hence, should be excluded from the list of comparables. Before us, the learned Counsel for the assessee has filed a written note, as per which, on exclusion of Axis Integrated Systems Ltd., the weighted average margin of rest of the comparables would work out to 15.36%. Assessee’s margin would be within the acceptable range requiring no further adjustment. We direct the Assessing Officer to compute the margin of comparables afresh and grant consequential relief to the assessee.
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2020 (8) TMI 891 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Seeking withdrawal of application - Section 12A of the IB Code, 2016 read with regulation 30(1) (a) of the CIRP Regulations, 2016 along with Rule 11 of National Company Law Tribunal Ruled, 2016 and Section 60(5) of the Insolvency and Bankruptcy Code 2016 with Rule 154 of NCLT Rules 2016 - HELD THAT:- IRP constituted the CoC consisting of Mr. Mukeshbhai Desai as Financial Creditor. The said constitution of CoC was challenged by the Suspended Management vide IA 752/19, which said IA was allowed on 10.07.2020, whereby, the constitution of the CoC with sole member namely Mukeshbhai Desai has been declared as void ab initio since there are no other claimants, and the Corporate Debtor is a going concern, hence the liberty was granted to the Operational Creditor to file the withdrawal application - It is stated that RP thereafter filed the instant application on 27.07.2020 with a prayer for withdrawal of the IB application filed Under Section 9 of the lB Code along with form FA dated 16.03.2020, i.e. application for the withdrawal of Corporate Insolvency Process( Under Regulation 30A of the IBBI ( Insolvency Resolution Process for Corporate Process) Regulation 2016 (Annexure C page No.37 in the said form FA).
It is very surprising that the said form FA is dated 16.03.2020/20.03.2020, duly signed by the authorized signatory of the operational Creditor of CP(IB) 178/18, but the same has been filed along with the instant application after about four months without assigning any reason for such delay - It is pertinent to mention that IA 752/2019 was pending for adjudication but the RP never mentioned and/or apprised the Adjudicating Authority about the filing of the Form FA by Operational Creditor, subsequently filed withdrawal of CP(IB) 118/2018, meanwhile was contesting the said IA 752/19 by filing a reply and advancing argument, thereby not only wasted his own time and money but has also wasted the time of the Adjudicating Authority and its resources, such action of the RP is not accepted.
The application so filed by the applicant RP is partially allowed.
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2020 (8) TMI 890 - APPELLATE AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH
Export of services or not - consultancy services provided to Overseas client - AAR ruled that the services in question are not 'Export of Service' but 'Intermediary Services', and attract IGST - Request for remand of the case - HELD THAT:- A request was made by the appellant to remand back the case to its original authority in light of the recent developments in the subject case, referring to a judgment in case of IBM India Pvt Ltd. Vs Commissioner of Central Excise & State Taxes., Banglore-LTU, [2019 (1) TMI 975 - CESTAT BANGALORE]. Consequent upon the request of the appellant, this authority remanded the case back to its original Authority to examine afresh and dispose accordingly.
The case is remanded to it's original authority.
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2020 (8) TMI 889 - SUPREME COURT
Grant of Bail - HELD THAT:- Taking into consideration the facts and circumstances of the case, it is considered appropriate in the interests of justice to direct the release of the petitioner on bail.
The petitioner is directed to be released on bail on furnishing bail bonds in the sum of ₹ 1,00,000/- (Rupees one lakh) with two sureties of the like amount to the satisfaction of the Trial Court and subject to the conditions imposed - application allowed.
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2020 (8) TMI 888 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Liquidation of the Corporate Debtor - the approval of the CoC is sought, to liquidate the affairs of the Company under Section 33 of the Code, subject to the approval of this Tribunal - HELD THAT:- On reading the Application and the documents enclosed therein, for the IRP has complied with the procedure laid under the Code read with Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, on verification, this is a fit case to pass liquidation order under sub-section 2 of section 33 of the Code as the CoC decided to liquidate the Corporate Debtor.
The Corporate Debtor is ordered to be liquidated - application allowed.
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2020 (8) TMI 887 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking extension of time to submit Resolution Plan alongwith Expression of Interest (EOI) - HELD THAT:- Section 12 of the IBC, 2016 provides for a time line of 180 days for completion of CIRP and even if we consider extended period it is another 90 days and hence within 270 days the CIRP should be completed - Although it is directory that CIRP can be completed upto a period of 330 days or so which is largely to consider the time frame of judicial process. Hence, practically all attempt be made to complete the CIRP within 270 days.
In the present case already two Resolution Plans have been received and hence the aspect of competitive bidding is complied with, if the present Appellant is permitted, it will open a floodgate for such applications & will derail CIRP & purpose of IBC, not only in this case but in other cases also.
Appeal dismissed.
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2020 (8) TMI 886 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Approval of resolution plan - Section 30(6), Section 31, Section 60(5) of the Insolvency and Bankruptcy Code, 2016 along with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- All the provisions of mandatory requirements are seen complied by the resolution applicant as per From H submitted by the RP. It provides provision for the payment of insolvency resolution process, payment of the debts of operational creditors, management of the affairs of the Corporate Debtor, and provides provision for implementation and supervision of the resolution plan. It also provides terms of the plan and its implementation schedule. So it is a feasible and viable plan. A judicious distribution of the financial bids by the CoC to the stakeholders according to their entitlements can be inferred from the plan under consideration. No waiver or extinguishments in contravention of the provisions of the Code or in violation of existing laws seen not brought out and therefore, there is nothing in the plan, so as to disapprove it.
The CoC has very well deliberated with the two plans and decided the viability, feasibility and financial matrix of each plan and approved one with 100% vote shares of the members of the CoC.
Resolution plan is approved - application allowed.
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2020 (8) TMI 885 - MADRAS HIGH COURT
Disallowance u/s.14A read with Rule 8D - disallowance made u/s.14A read with Rule 8D to be confined to 3rd limb of Rule 8D alone and deleting the disallowance pertaining to 2nd limb of Rule 8D - HELD THAT:- We find that there are two facets to the discussion made by the Tribunal as of which is that the assessee has not filed an appeal as against the confirmation of disallowance under Section 14(A) at R.39,70,832/-. This is a statement of fact. The second facet of the finding is with regard to the Revenue's contention that CIT(A) erred in restricting the disallowance to only ₹ 39,70,832/-. Tribunal considered the factual position and earlier order passed by the Tribunal in the assesse's own case and held that the Revenue has not been able to point out any error in restricting the disallowance under Section 14(A) to ₹ 39,70,832/- being 0.5% of the average value of the investment.
Thus, we find that the Tribunal has given a finding as to why it does not find any ground to interfere with the order passed by the CIT(A). In our considered view, the entire issue involved is fully factual and reasonableness of the expenditure incurred has been computed by the CIT(A) and confirmed by the Tribunal after considering the merits of the matter.
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