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2021 (11) TMI 843
CIRP Proceedings - Resolution plan - seeking directing to form a consolidated ‘Committee of Creditor’ (CoC) of the Corporate Debtor alongwith ‘parent company’ and the Corporate Debtor etc. - HELD THAT:- It is an admitted fact that ‘debt’ and ‘default’ exists. The Corporate Debtor is in a bad financial health and has failed to execute the major project awarded to it by NHAI and there are huge costs overrun - the issue of limitations cannot be acceded too as the Balance Sheet of the corporate debtor as early as in the year 2018 acknowledges debt and Section 18 of Limitation Act, 1963 is applicable to the proceedings under the Code. Hence, the Appellant cannot be given advantage of the limitation also.
Even the summary of financial linkage between the parent company and the SPVs cannot be examined on standalone mode. Even value of awards won by SPVs and ‘Financial Debt’ and other input cannot be examined as these are not the subject matter of the Appeal even remotely. The Code is silent on the issue of ‘Group Insolvency’ and only when input is available in respect of all subsidiary companies and holding company then only it can be examined and that too only with respect to the material available in the Appeal Paper book and relief sought. This Tribunal is the creature of the statute only and hence, it has to work within the framework of the Code.
As far as filing of claim by the Respondent and withdrawing the claim, thereafter, is the prerogative of the Bankers at its own risks and based on its own evaluation. The claim has been withdrawn and permitted by the ‘Adjudicating Authority’. Hence, this issue is not of much consideration in the present appeal. Each member of CoCs have an independent mechanism for evaluation considering its own benefits and risks - it is amply clear that the Appellant has to prove the fraudulent or malicious intent and has to file specific application under Section 65 of the Code. The Appellant has not done so. Hence, this Tribunal cannot accede to the request of the Appellant to annule the proceedings.
The Adjudicating Authority vide Section 7(5)(a) is fully satisfied from their observations in the impugned order that a ‘Debt’ beyond the threshold limited of the Code exists and ‘Default’ has occurred and the Application complied with the relevant applicable regulations and hence, thereafter, admitted the application.
Appeal dismissed.
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2021 (11) TMI 842
Liquidation of the Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is evident from the record that in compliances of Section 21 of Code read with Rule 6 & 8 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulation), the IRP constituted CoC.
The liquidation of the Corporate Debtor is effective from the date of this order and the Moratorium declared vide order dated 03.02.2021 - Application allowed.
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2021 (11) TMI 841
Validity of reclassification of claims of the applicants as "Other Creditors" from "Secured Financial Creditors" - revision of claim of RP - HELD THAT:- Nowhere in the agreement, it is mentioned that the loan amount was transferred to the account of the Corporate Debtor. It is contended by the Resolution Professional that examination of the Balance Sheet and other records of the Corporate Debtor suggests that the liability of the Corporate Debtor under the above loan agreements were contingent in nature and the no direct borrowings from the Applicant/Creditor was ever reflected in the financials of the corporate debtor, despite the Corporate Debtor being joint borrower under the above loan agreement. Therefore, in de facto, the liability of corporate debtor under these loan agreements was always contingent and payable only in case of the default by the direct borrower. And this is not disputed by the Applicant.
For a debt to become "financial debt", the basic elements are that it ought to be a disbursal against the consideration for time value of money. Since, in the case in hand, there is no disbursal of the amount to the corporate debtor, therefore, the applicant cannot be treated as a financial creditor - the loan amount was not disbursed to the Corporate Debtor. Hence, this applicant is also not a financial creditor. Rather, the applicant is a secured creditor.
Whether the RP can revise the claim or not? - HELD THAT:- A bare perusal of the Sub Regulation 2 of Regulation 14 (Supra) shows that the interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of the claims admitted, including the estimates of claims made under sub regulation (1) as soon as may be practicable, when he comes across additional information warranting such revision.
Application dismissed.
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2021 (11) TMI 840
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - event of default - execution of debenture trust deed-cum-indenture of mortgage - HELD THAT:- The terms and conditions or the debenture trust deed-cum-indenture of mortgage, evidences the fact that the corporate debtor in view of the raising finance for the purposes of purchasing FSI, undertaking construction activities, creation and maintenance interest service deserve, meeting issue expenses and another general corporate purposes have issued correct placement of fully secured creditor and unlisted fully transferable non-convertible debentures having face value of ₹ 10 lakhs into two series after grant substitution amount of ₹ 25 crores. It was envisaged under the debenture trust deed-cum-indenture of mortgage that by way of private placement of a letter the issuer has offered for issuance by way of private placement of debentures.
It is clear that the English mortgage is created in favour of the debenture trustee for the benefit of debenture holders and therefore, the title, ownership possession, interest, benefits, claim and demand including and lease hold rights or for the mortgaged units were transferred to the debenture trustee absolutely - in terms of the debenture trustee-cum-mortgage deed, it is clear that the title of the mortgaged properties is transferred to the debenture trustee absolutely and upon the satisfaction of the secured obligations the debenture trustee shall reconvey that the property to the corporate debtor the clause of reconveyance.
Upon perusal of the debenture trustee deed-cum-indenture of mortgage dated January 10, 2018 it is clear that the events of defaults envisage the realization of security upon happening events of defaults as a mechanism defined under the agreement in the particular manner, wherein he has power to sale the property, upon to receiver and make application to the court permanent receiver under clause 32. It also envisages a provision at clause 35.5, wherein it is agreed between the parties that the debenture holders and debenture trustee can take properties without intervention of court - in terms of the English mortgage, the mortgagor has a recourse to repay the mortgaged debt and has the right to seek reconveyance of the properties to the mortgagor upon complete satisfaction of debt.
The petitioner has absolute rights in the mortgaged property and cannot initiate any action under section 7 upon non-payment of dues under the debenture trust deed, the petitioner has agreed to recourse and sell the mortgaged assets and recover the money due - this Bench conclude upon non-payment dues under the debenture trust deed, there is no default and the petitioner has agreed to recourse as envisaged under registered debenture trust deed-cum-mortgage.
Petition dismissed.
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2021 (11) TMI 839
Committee of creditors is seeking replacement of IRP - conflict of interest - HELD THAT:- In the present case, in the first meeting of CoC, the CoC proposed to replace IRP and in the second meeting the applicant was authorized to file this application. The CIRP has started on April 6, 2021 and as per the contentions made on behalf of the existing IRP, IRP has conducted CIRP as well as run the affairs of the corporate debtor in a most professional manner even during pandemic situation prevailing all over the country. It is also claimed that the CoC has not controverted this factual position. It is also stated that around 170 days have already passed and much progress has been achieved for resolution of insolvency of the corporate debtor.
There should be perfect cohesiveness between the two pillars of CIRP. It is also noted that in the present case IRP was proposed by the original financial creditor, i. e., Invesco Asset Management (India) P. Ltd., which is a large financial institution who had filed application under section 7, hence, prima facie professional competency, capacity and neutral approach of such IRP cannot be doubted.
CIRP period timeline of 180 days is also approaching - if it is not found so then CoC may file an application for change of IRP based upon short comings in the overall performance of IRP so fair. In this view of the matter, we refrain ourselves from dealing other contentions made by both sides.
Application dismissed.
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2021 (11) TMI 838
Implementation of Resolution Plan - restraint on resolution professional and committee of creditors of GB Global Ltd. (erstwhile Mandhana Industries Ltd.) from handing over the management of the corporate debtor to the new resolution applicant - Fraudulent trading or wrongful trading - HELD THAT:- The land was proposed to be sold for a higher value than the purchase price. It is noted that on May 14, 2019 the KIADB claimed a sum of ₹ 69.93 lakhs towards additional cost of land. The applicant has not placed any material in support of the contention that the property was worth about ₹ 25 crores in 2010 which would show that it was proposed to be sold at a far lesser value.
The mandate is very clear that only a "creditor, member or a partner" of the corporate debtor can make an application to the Adjudicating Authority to declare such transactions as void and reverse their effect. The applicant not being a creditor or partner of the corporate debtor is not competent to raise the issue nor can seek a direction to respondent No. 3 concerning the matter. As per respondent No. 3 a forensic auditor was appointed to look into the transactions of the corporate debtor and certain transactions of the corporate debtor were found to be questionable and the same are pending consideration before this Tribunal - The CoC is aware of the proposed sale of the land for ₹ 2.25 crores in the year 2010. No member of the CoC has questioned the propriety of the consideration. In the absence of any material the allegation of undervaluation cannot be accepted, for the limited purpose of this application.
This application is found to be frivolous and without any merits - application dismissed.
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2021 (11) TMI 837
Refund of service tax - erroneous classification of service tax - services erroneously classified under the category of Renting of Immovable Property Services, whereas the services provided by them actually were Service by Hostel for residential/ lodging purpose - exemption under N/N. 25/2012-ST dated 20.06.2012 - HELD THAT:- In the present case appellant has in the initial stage issued invoices claiming the service tax payable from their client, and have also deposited the same with the exchequer. Now by way of this application they seek the refund of the same.
There can be no refund except for in the manner provided by Section 11B, i.e. without Assistant Commissioner recording his satisfaction to effect that the burden of tax paid and claimed as refund has not been further passed on.
In the present case in absence of any such satisfaction matter needs to be referred back to the original authority of reconsideration of the refund claims - appeal allowed by way of remand.
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2021 (11) TMI 836
Works Contract Services - Composite Contract - Commissioning or Installation of Plant Machinery and Equipment Service - Repair and Maintenance Service - period involved in the matter is 2004-05 to 2008-09 - HELD THAT:- During the course of adjudication, all the 97 work contracts have not been examined in detail by the Adjudicating Authority and merely on the basis of sample contracts, the demand of service tax was confirmed. It is also a fact on record that for the contracts mentioned at Serial No. 1, 2, 4, 5, 34, 37, 39, 40, 58, 73, 94 to 97 at Annexure ‘D’, there is categorical finding of the Adjudicating Authority that these are the turnkey projects. Thus, where there is turnkey projects, the services were rendered along with supply of materials i.e. in the nature of Works Contract service and for that the proper classification is Works Contract service but for the rest of the Contracts no examination in detail with nature of work was done by the adjudicating authority to say whether any supplies are inclusive of the work contract or not?
The matter remanded to the Adjudicating Authority to examine each and every contract in detail to ascertain the fact whether services have been provided along with material and it is a composite contract - appeal is disposed of by way of remand.
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2021 (11) TMI 835
Valuation - security agency services - inclusion of reimbursable expenses in the value of the taxable services - HELD THAT:- The issue is squarely covered in favour of the appellant by various decisions referred to by the appellant. Taking note of all the said decisions, the Tribunal in the case of M/S BHARAT COKING COAL LTD. VERSUS COMMR. OF CENTRAL EXCISE & S. TAX, DHANBAD [2021 (9) TMI 23 - CESTAT KOLKATA] where it was held that Allahabad Bench of the Tribunal in the case of CENTRAL INDUSTRIAL SECURITY FORCE VERSUS COMMISSIONER OF CUSTOMS, C.E. & S.T., ALLAHABAD [2019 (1) TMI 1661 - CESTAT ALLAHABAD], has already settled the issue in favour of the appellant to hold that expenses incurred towards medical Services, vehicles, expenditure on Dog Squad, stationery expenses, telephone charges, expenditure incurred by the service recipient for accommodation provided to CISF etc are not includible.
Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 834
Non-payment of service tax - Outdoor catering services - period prior to October 2013 - Section 73(1) of the Finance Act, 1994 - Notification No.14/2013-ST dated 22.10.2013 - HELD THAT:- The issue decided in the case of M/S. SAI FOOD SERVICES VERSUS COMMISSIONER OF C.G. ST., NAVI MUMBAI [2020 (2) TMI 1394 - CESTAT MUMBAI] where it was held that since the appellant had provided the services of serving food and maintaining the canteen located in the factory, belonging to M/s. Ceat Ltd., the benefit of service tax exemption.
There are no merit in the impugned orders demanding tax, interest and imposing penalty - appeal allowed - decided in favor of appellant.
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2021 (11) TMI 833
CENVAT Credit - input services - Works Contract Service used for Repair of their factory premises - inclusion part services used in relation to modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises - HELD THAT:- It is obvious that a exclusive part can only exclude what is otherwise included in the inclusive part, therefore. If anything is covered in the exclusive part it remains excluded irrespective of the fact that the same was specifically included in the main definition or the inclusive part. This is so because the exclusive part comes at the end of the definition and not before the inclusive part.
Appeal dismissed.
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2021 (11) TMI 832
CENVAT Credit - input services - GTA services for carrying the waste namely ‘sludge’ to the dumping yards - HELD THAT:- The appellants have to remove the waste from the factory to the demarcated dumping yards as required by the Pollution Control Board. If they do not comply with this mandatory requirement, their license for manufacture will be cancelled. Therefore, it can be stated that these services availed by the appellant are in relation to the activity of manufacture within the factory.
The very same issue is considered by the Tribunal in the case of AMPHENOL INTERCONNECT INDIA PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE PUNE [2018 (9) TMI 810 - CESTAT MUMBAI] where it was held that the service tax paid for transportation of such waste material should be considered as input service, for the purpose of availment of Cenvat benefit.
The credit availed by the appellant is eligible - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 831
Recovery of service tax - demand pertaining to the period prior to 18.4.2006 and the period after such date - IPR Services - reverse charge mechanism - HELD THAT:- As a recipient of taxable service, the appellant was not liable to pay service tax under reverse charge mechanism prior to the period 18.4.2016 as per the judgment of Hon’ble Bombay High Court in the case of INDIAN NATIONAL SHIPOWNERS ASSOCIATION VERSUS UNION OF INDIA [2008 (12) TMI 41 - BOMBAY HIGH COURT], which was subsequently been affirmed by the Hon’ble Supreme Court, UNION OF INDIA VERSUS INDIAN NATIONAL SHIPOWNERS ASSOCIATION [2009 (12) TMI 850 - SC ORDER].
Considering the factual matrix, the original authority has not only dropped the demand for the period prior to 18.4.2006 but also dropped the proposed demand towards IPR service received by the respondent after such effective date, holding that, such service was not liable for payment of service tax prior to the period 1.7.2012.
There are no infirmity in the impugned order passed by the learned adjudicating authority - Revenue dismissed.
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2021 (11) TMI 830
CENVAT Credit - variance in the inventory of the Cenvat inputs maintained by the appellants - value of net shortages in the input inventory - HELD THAT:- The shortages and excesses if any found are theoretical due to huge quantity of inputs handling. It is not a case of the Department that the appellant have ever removed any Cenvat inputs without payment of duty from their factory. Therefore, even though there is any shortage or excess, the input was available within the factory premises or consumed in the production.
It can be seen that the same facts and circumstances existing in the present case, even though there is some theoretical variation in the inputs was found and on that ground the CENVAT Credit cannot be denied.
The CENVAT Credit cannot be denied to the appellant on a theoretical variance in the inputs - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 829
CENVAT Credit - common input - Furnace Oil - liability to pay 10% of the value of the exempted goods in terms of Rule 6(3) of CCR - appellant had suo moto reversed the proportionate credit before issuance of show-cause notice - HELD THAT:- There is no dispute to the fact that the appellant suo moto reversed the proportionate CENVAT Credit in respect of furnace oil before issuance of show-cause notice and also paid the interest @ 13%. However, subsequently the appellant also paid the remaining 11% interest in terms of Section 73 of the Finance Act, 2010. We find that even without considering the Finance Act, 2010 for the prior period and even subsequent to the validity of this retrospective amendment provision this issue was considered. In catena of judgments, various Courts and Tribunal has consistently held that if the assessee reversed the proportionate credit even though belatedly and paid the interest for delay in reversal, the demand of 5%/10% in terms of Rule 6(3) will not sustain. Therefore, since the appellant admittedly reversed the proportionate credit in respect of furnace oil used in or in relation to manufacture of exempted goods and also paid the interest @ 24%, the demand of 10% of the value of exempted goods will not sustain.
Once the proportionate credit in respect of the inputs used in the manufacture of exempted goods has been reversed and interest thereupon was paid in case of any delay in reversal, the demand of 10% of the value of exempted goods under Rule 6(3) will not sustain - since the appellants have reversed the proportionate credit along with payment of 24% interest, the demand of 10% of value of the exempted goods in terms of Rule 6(3) is not sustainable - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 828
Rejection of request of the petitioner for rectification of an Assessment Order - Recovery of proportionate Input Tax Credit - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- This is the case where the petitioner had failed to challenge the Assessment Order dated 16.06.2015 in time before the Appellate Commissioner. This is not a case where there is an error apparent on the face of record for the petitioner to invoke the jurisdiction of the Assessing Officer under Section 84 of the TNVAT Act, 2006 - The amount involved is also meagre amount of ₹ 33,063/- on account of the consequences of the Assessment Order under CST for the Assessment Year 2011-2012. Therefore, there is not only no merits in the present writ petition but also no equity in favour of the petitioner.
This Writ Petition is dismissed with liberty to the petitioner to file a revision application, if such application can be filed in accordance with law.
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2021 (11) TMI 827
Validity of assessment orders - returns submitted for the Assessment Years 2006-2007 to 2010-2011 for which no assessment orders have been passed shall be deemed to have been assessed on 30.06.2012 - proviso to Section 22(2) of the TNVAT Act - HELD THAT:- The amendment to Section 22(2) of the TNVAT Act, 2006 in the year 2012, if no Assessment Orders were passed for the Assessment Years 2006-2007 to 2010-2011, assessment is deemed to have been completed on 30.06.2012. Since the assessment is deemed to have been completed on 30.06.2012, the avenue to revise the assessment is only under Section 27 of the TNVAT Act, 2006 from the aforesaid date.
The arguments advanced by the learned counsel for the petitioner is acceptable in view of the fact that no other proceedings were pending at the instance of the petitioner so as to exclude the time under terms of Section 27(6), 27(7) and 27(8) of TNVAT Act, 2006.
The impugned notices are to be declared as time barred and therefore liable to be quashed and are accordingly quashed subject to the rider that the petitioner had filed a complete return for the respective year along with the declaration and document for completing the assessment to invoke Section 27 of the TNVAT Act, 2006 - Petition allowed.
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2021 (11) TMI 826
Recovery of loan amount - Kerala Money Lenders Act, 1958. - basic contention of the learned counsel for the petitioners is that the complaint based on which Annexure-F final report filed was without any bona fides and it was intended to interfere with the on-going proceedings under Section 138 of the Negotiable Instruments Act - HELD THAT:- It is well settled position that the delay in lodging the FIR, often results in embellishment and exaggeration. It exposes the danger of introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, and thus casting a very serious doubt on its veracity. In such circumstances, the explanation for such huge delay was insisted upon and in the absence of which, the case can be quashed.
It is true that the invocation of power under Section 482 Cr.P.C. is to be sparingly used in rare cases. Therefore, the exercise that should be performed before invoking the said jurisdiction, is to look carefully all the aspects of the case and to verify whether the case at hand is fit for invoking the powers under the said provision - No documents are also seen produced to substantiate, either availing of the loan in the year 2006 or repayment thereof. The aforesaid aspects coupled with long delay occurred in the initiation of the proceedings, which is much after the petitioners have initiated proceedings under Section 138 of the Negotiable Instruments Act, shatters the case advanced by the prosecution. From the aforesaid materials, the irresistible conclusion possible is that, the entire proceedings of submission of the complaint, filing of Annexure-F charge sheet and all further proceedings are clear abuse of process of law. The chances for successful prosecution based on Annexure-F charge sheet is very bleak particularly because of the fact that it lacks any specific material particulars in support of the allegations and the offences alleged.
The petitioners are entitled to succeed - Petition allowed.
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2021 (11) TMI 825
Dishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption - HELD THAT:- There is no dispute with the proposition of law that the Court in exercise of its inherent powers will not lightly interfere where the Court may have to analyze the factual aspects of the case in detail and is required to deal with the defense that may or can be taken otherwise by the party in the proceedings. The proceedings in any given case are abuse of process of law or not depends upon the facts and circumstances of each case.
In the case in hand, the precise submission made on behalf of the petitioner is that the cheque amounting ₹ 7,40,000/- subject matter of the complaint was though issued to the respondent initially yet on the asking of the respondent in lieu of the said cheque two more cheques of ₹ 3,70,000/- each were issued to the respondent and further the cheque ₹ 7,40,000 though returned by the respondent to the petitioner was again stolen by him after the amounts of two cheques were withdrawn by the respondent - The Court is of the considered view that the transaction as presented by the petitioner in the present has infact happened or meant to take place in that manner cannot be determined or commented upon by this Court in the present proceedings.
The exact nature of liability can be brought on record by the complainant during the trial. It cannot be denied that there is a presumption in favour of the holder of the cheque that the cheque is issued in the discharge of some liability. Of course, the presumption can be rebutted by the author of the cheque. The petitioner herein can raise all the pleas which he has taken in the present petition before the trial but cannot agitate the same before this court in the present petition.
The petition is dismissed.
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2021 (11) TMI 824
Validity of reopening of assessment - As argued by petitioner-company notice issue to an entity not in existence at the relevant time, as it had merged with the petitioner-company - HELD THAT:- Prima facie, there appears to be merit in the contention advanced by petitioner-company
Respondents/revenue.says that, he will revert with instructions on this aspect of the matter. We may also note that although opportunity was given to the respondents/revenue to file a counter-affidavit in the matter; no affidavit has been filed, as yet.
List the matter for directions on 17.11.2021.
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9911796707
