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Showing 401 to 420 of 1203 Records
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2021 (11) TMI 803
Deemed dividend u/s 2(22)(e) - transaction of money received from the company - HELD THAT:- We notice from the records submitted before us indicate that the assessee was having regular transactions with the company and paid advances to the company in the earlier assessment year and this year assessee has entered into transactions like sale of plot to the above said company and also intend to give office space on rent, even though the MOU submitted by the assessee are unsigned, the transactions declared by the assessee in the previous assessment year clearly indicates that assessee has already taken ₹ 12,25,000 as rental advance in the previous year. Since it is a continuous transaction and we notice that still assessee to receive ₹ 12,64,000 from the company against the advance paid during the previous assessment year, in our opinion, we do not see any reason to treat the current year transaction as deemed dividend.
In the present case, we notice that irrespective of the reserves and surplus balance outstanding in the company, the assessee was dealing with the company by paying advances/deposit to the company. Further we notice that the assessing officer has proceeded to treat the difference between the closing balance and the opening balance as the deemed dividend. In order to make the addition under the head deemed dividend, the Assessing Officer should investigate each transaction of money received from the company and the make the addition accordingly. Therefore, we do not see any reason to sustain addition made by the Assessing Officer. Accordingly, we direct the Assessing Officer to delete the addition made under the head deemed dividend under section 2(22)(e) - Decided in favour of assessee.
Correct head of income - Gain on sale of shares - capital gain or business income - assessee declares income from sale of shares as capital gains and also deals in derivative transactions while AO treated the transactions carried on by the assessee as business transaction- HELD THAT:- Assessee had shares held for more than 12 months and we are in agreement with the assessee that assessee can have choice of treating the income under the head capital gains as per the circular No. 6 above 2016 dated 29 February 2016 and also in our opinion that statements submitted by the assessee needs verification, therefore we find it appropriate to remit this issue back to the file of assessing officer to verify the claim of the assessee and accordingly treat the income declared by the assessee under the head capital gains to those portfolios which was held by the assessee as investment.
Short-term capital gain and derivative transactions, as held in the case of Ghopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT]the assessee is allowed to maintain its business transaction/portfolio management under 2 categories one held as stock in trade and another held for investment - we direct the assessing officer to complete the assessment based on the ratio of above decision. Accordingly ground No.2, 3 and 4 are allowed for statistical purpose.
Exemption as profit on sale of agricultural land - new claim under section 54B - HELD THAT:- We notice that assessee has claimed deduction under section 54B first time before Ld CIT(A) and Ld CIT(A) rejected the claim of the assessee without going into the documents submitted by the assessee and he rejected the claim based on the information available on record. We’re in agreement with the assessee that assessee can claim the deduction/exemption anytime during the appellate proceedings. Since assessee is making a fresh claim and it is found that assessee is legally eligible to claim the same. In order to verify the claim of the assessee, we are remitting this issue back to the file of AO and we are directing the assessing officer to verify the relevant documents and submissions made by the assessee and in case it is found that assessee is eligible to claim deduction then it may be allowed as per law. With the above direction, we are allowing the ground raised by the assessee for statistical purpose.
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2021 (11) TMI 802
Valuation of imported goods - Star Aniseeds - rejection of declared value - suppression of value of goods - Retraction of voluntary statements - Section 46(4) of the Customs Act, 1962 - principles of natural justice was not complied with - HELD THAT:- The writ Court had specifically noted the steps that contemplated in Rule 12 of the Customs Valuation(Determination of Value of Imported Goods) Rules and found that once the value declared by the importer is rejected, the proper Officer will have to determine the value by separate proceedings sequentially in accordance with Rules 4 to 9. The appellant failed to do so and therefore, the writ Court had rightly remitted back to the authorities for fresh consideration in accordance with law.
Having failed to follow the procedure prescribed and the steps to be followed, the case had been remitted only for a fresh consideration for which, the authorities cannot have any grievance - there are no merit in the case of the appellant and the writ appeal is dismissed as devoid of any merits.
Appeal dismissed.
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2021 (11) TMI 801
Period of limitation - Validity of assessment order - Extension of time limit in exercise of its power under the proviso to Section 110(2) of the Customs Act, 1962 - Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance 2020 - HELD THAT:- Notification G.S.R.601(E) [F.No.450/61/2000-Cus.IV (Part-I)] extending the time limit for completion or compliance of various action such as completion of any proceeding or issuance of any order, notice, intimation, notification or sanction or approval, by whatever name called, by any authority, commission, tribunal, by whatever name called, from 30.09.2020 to 31.12.2020. The above notification extending the time limit from 30.09.2020 to 31.12.2020 for various actions set out thereon has apparently not been brought to the notice of the learned Single Judge. The learned Single Judge has found that in view of the Ordinance 2020, the time limit prescribed under Section 110(2) of the Customs Act, 1962 would stand extended to 30.09.2020. However, as the subsequent notification has not been brought to the notice of the learned Single Judge, the learned Single Judge was prompted to hold that the impugned intimation extending the time limit under the proviso to Section 110(2) of the Customs Act, 1962 dated 30.09.2020 and receipt of the same by the respondent herein on 07.10.2020 was beyond the period stipulated in the proviso to Section 110(2) of the Customs Act,1962 and thus bad in law.
The Central Government has now extended the date from 30.09.2020 to 31.12.2020 for completion or compliance of action such as completion of any proceeding or issuance of any order, notice, intimation, notification or sanction or approval, by whatever name called, by any authority, commission, tribunal, by whatever name called. In view of the above notification, the proceedings dated 30.09.2020 though served on 07.10.2020 is within the period extended by the Central Government vide notification G.S.R.601(E) [F.No.450/61/2000-Cus.IV (Part-I)] and thus valid.
Appeal allowed.
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2021 (11) TMI 800
Seeking issuance of a writ of quo warranto directing Respondent No.2 to set out the Authority under which the said Respondent is holding office as Technical Member of National Company Law Appellate Tribunal - HELD THAT:- It is a settled law that in matters of appointments, it is the Selection Committee, which is the expert body to decide the merits and demerits of a candidate and it is not in the domain or jurisdiction of the Courts in a judicial review to substitute the wisdom, expertise and decision of the Selection Committees.
There is no allegation of bias or malafides against the Selection Committee. It is a settled law that it is the domain of the Selection Committees to make selections and the Courts, while sitting in a judicial review, cannot substitute the decision of the Selection Committees, which are expert bodies unless there are allegations of bias or malafides or there is a challenge to the composition of the Committee, which is admittedly not the case here. Petitioner has itself averred in the writ petition that Respondent No.2 has been serving as a Judicial Member of the District and State Consumer Forums and has been a Judicial Member of the NCRDC since 2015 - It needs no emphasis that the recommendations of the Search-cum-Selection Committee were duly approved by none other than the Appointments Committee of Cabinet and needless to state, there are no allegations of bias or malafides against any Member of the ACC. In our view, therefore, no grounds have been made out by the Petitioner to interfere in the selection and appointment of Respondent No.2.
The order passed by Regional Director (Southern Region), Ministry of Corporate Affairs, on 17.08.2018 clearly reveals that the license of the Petitioner Company as a Section 8 Company has been cancelled and the Petitioner is legally debarred from using the name ‘India Awake for Transparency’, by which name the present petition has been filed - the Petitioner not only lacks the locus to file the present petition, but has also deliberately concealed and suppressed the aforementioned crucial facts, which have been brought to our knowledge by Respondent No.1 and the intervener.
This writ petition along with all the pending applications is accordingly dismissed, with costs of ₹ 25,000/- to be deposited by the Petitioner with the Delhi State Legal Services Authority within four weeks from today.
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2021 (11) TMI 799
Transfer of the company property - appointment of an administrator, to direct respondent No. 1 not to increase its authorised share capital or allot any fresh shares - HELD THAT:- The applicant herein was not a shareholder when the transaction in question took place. He got associated with respondent No. 1/company subsequently. Thus, the applicant does not have locus to question the transaction in question.
The applicant is not able to establish a prima facie case or balance of convenience in his favour for grant of interim relief. However, no further alienation of assets of respondent No. 1/company shall be made from the date of this order in order to avoid multiplicity of proceedings.
Application disposed off.
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2021 (11) TMI 798
Initiation of the CIRP - deficiencies in its services - Stay on termination by the appellant of its Facilities Agreement - facilities to the appellant for conducting examinations for educational institutions - residuary jurisdiction of NCLT under Section 60(5)(c) of the IBC to adjudicate upon the contractual dispute between the parties - Imposition of an ad-interim stay on the termination of the Facilities Agreement, by residuary jurisdiction - HELD THAT:- In INDUS BIOTECH PRIVATE LIMITED VERSUS KOTAK INDIA VENTURE (OFFSHORE) FUND (EARLIER KNOWN AS KOTAK INDIA VENTURE LIMITED) & OTHERS [2021 (3) TMI 1178 - SUPREME COURT], a three judge Bench of this Court, of which one of us was a part (Justice AS Bopanna), held that Section 238 of the IBC overrides all other laws. This Court was considering whether a reference to arbitration made under Section 8 of the Arbitration and Conciliation Act 1996 in terms of the agreement between the parties would affect the jurisdiction of the NCLT to examine an application filed under Section 7 of the IBC.
Admittedly, the appellant is neither supplying any goods or services to the Corporate Debtor in terms of Section 14 (2) nor is it recovering any property that is in possession or occupation of the Corporate Debtor as the owner or lessor of such property as envisioned under Section 14 (1) (d). It is availing of the services of the Corporate Debtor and is using the property that has been leased to it by the Corporate Debtor. Thus, Section 14 is indeed not applicable to the present case - It is evident that the appellant had time and again informed the Corporate Debtor that its services were deficient, and it was falling foul of its contractual obligations. There is nothing to indicate that the termination of the Facilities Agreement was motivated by the insolvency of the Corporate Debtor. The trajectory of events makes it clear that the alleged breaches noted in the termination notice dated 10 June 2019 were not a smokescreen to terminate the agreement because of the insolvency of the Corporate Debtor.
The order of the NCLT dated 18 December 2019 does not indicate that the NCLT has applied its mind to the centrality of the Facilities Agreement to the success of the CIRP and Corporate Debtor’s survival as a going concern. The NCLT has merely relied upon the procedural infirmity on part of the appellant in the issuance of the termination notice, i.e., it did not give thirty days’ notice period to the Corporate Debtor to cure the deficiency in service. The NCLAT, in its impugned judgment, has averred that the decision of the NCLT preserves the ‘going concern’ status of the Corporate Debtor but there is no factual analysis on how the termination of the Facilities Agreement would put the survival of the Corporate Debtor in jeopardy.
The proceedings initiated against the appellant shall stand dismissed for absence of jurisdiction.
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2021 (11) TMI 797
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Applicant has issued demand notice under Section 8 of the IBC upon the CD on 25.01.2021 during severe Pandemic Period when the notification of Govt. of India/RBI is clear that no proceedings under Section 7, 9 and 10 of I&B Code can be initiated for the default occurs during Covid Pandemic period between 25.03.2020 –to 25.03.2021.
One of the necessary preconditions for admitting any Application filed under Section 9 of the I & B Code is that, mere existence of Debt is not enough but a default in payment of that debt must have occurred. A default can be said to be occurred only after expiry of the time period agreed to by the Parties within which the payment is to be made - In this case, no such time or period for making the payments of Goods sold has been specified and the Applicant could not produce any documents to show the Due and Date of Default of Debts.
The Application filed under Section 9 of I&B Code is hereby rejected in the absence of submission of proof of Due and Default date of the unpaid dues by the Applicant - Application dismissed.
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2021 (11) TMI 796
Seeking issuance of directions to the Appellant to allow removal of the materials lying in the Customs Bonded Warehouses without payment of Customs Duty - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The learned Adjudicating Authority has passed the impugned Order on the premise that Insolvency and Bankruptcy Code, 2016 is a special law that provides a non-obstante clause under Section 238 of the Code with overriding effect over other prevailing law and statute, time being in force. Further, relying on the case-law of Hon'ble Supreme Court in the case of SOLIDAIRE INDIA LTD. VERSUS FAIRGROWTH FINANCIAL SERVICES LTD. [2001 (2) TMI 968 - SUPREME COURT], it is argued that if there are two special statutes, which contain non-obstante provisions, the later statute must prevail. Therefore, by virtue of Section 238 of the Code being a subsequent law, the proceeding contained therein shall have an overriding effect on the other proceedings of the Customs and Central Excise Act.
The Adjudicating Authority held that provisions of Section 53 of the Code prescribe the Order of priority for distribution of proceeds from the sale of liquidation assets, which shall prevail over the provisions of Section 11(e) of the Central Excise Act and other provisions of the Customs Act - the Respondent Department cannot legally withhold the releasing of the material/goods, which are the property of the Corporate Debtor Company (in Liquidation) and impose a prerequisite condition for making payment of the customs duty by the Liquidator of the Corporate Debtor Company (under Liquidation) because the claims of the Respondent's Department have to be treated as a Government Dues and needs to be dealt with under the waterfall mechanism provided under Section 53 of the Insolvency and Bankruptcy Code, 2016.
The Liquidator could take possession of only the Company's assets, which the Company itself could have obtained. The liquidation proceedings do not change the rights in this regard, and Customs Duty needs to be paid for the release of the goods by the importer. In the circumstances, the materials lying in the customs bonded warehouses can not be treated as 'Assets of the Corporate Debtor'. Thus, the Liquidator cannot claim goods without payment of Customs dues to settle claims of the secured creditors. Section 142 of the Customs Act deals with the provision to settle the claims of Customs by proceeding against the materials lying uncleared/unclaimed in the warehouses since liabilities under the Customs Act are the first charge under Section 142 A of the Customs Act.
It is clear that NCLT and NCLAT cannot usurp the legitimate jurisdiction of other Courts, Tribunals and fora when the dispute does not arise solely from or relating to the Insolvency of the Corporate Debtor. In the instant case, the Corporate Debtor had abandoned the imported goods in the Customs warehouses for several years and failed to pay the import duty and other charges and had not taken any steps to take possession of those goods for several years. Therefore, the importer had lost his right to the imported goods - The Liquidator has no right to take into possession over those goods for which the Corporate Debtor's title is deemed relinquished by implication of law.
It can not be presumed that the Appellant had relinquished its right over the property and submitted to the jurisdiction of the Liquidator. The Claim is filed in an effort to realise its dues. Still, it will not amount to relinquishment of its right over the Warehoused goods under its custody for which Appellant has every right to sell those goods for the realisation of the Government dues - the assets lying in the Customs bonded warehouses cannot be considered assets of the Corporate Debtor. The Liquidator intends to possess the uncleared goods from the customs warehouses without upfront payment of Customs duty, which is against the statutory provisions of the Customs Act, 1962. Therefore, the imported goods subject to levy of Customs stand on a different footing than the goods /assets, not in the Corporate Debtor's possession. Therefore the assets lying in the Customs bonded warehouses cannot be considered assets of the Corporate Debtor.
The Adjudicating Authority committed an error in directing the release of goods without paying customs duty and other applicable charges - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 795
Interpretation of statute - prime submission of the Learned Counsel of the Appellants is that Sections 97(1) & 97(2) of ‘IBC’ are mandatory pre-condition which ought to be satisfied before the ‘Adjudicating Authority’ can proceed to pass order under Section 97(5) of ‘IBC’ - HELD THAT:- In the instant case on hand, ongoing through word ‘shall’ occurred in Section 97(1) of ‘IBC’ employed in Section 97(1) of ‘IBC’, this ‘Tribunal’ is of the considered view that it is only ‘Directory’ and not ‘Mandatory’ and holds it so, in the teeth of Rule 8(1) of the Insolvency and Bankruptcy (Application to ‘Adjudicating Authority’ for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 and also by which the NCLT may pick up any one from the Panel for appointment of ‘IRP’ Liquidator, Resolution Professional and Bankruptcy Trustee. As such, when the ‘Adjudicating Authority’ had exercised its judicial discretion in fair manner for the appointment of Mr. Anil Kohli as an ‘IRP’, the same cannot be found fault with as opined by this ‘Tribunal’.
Appeal dismissed.
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2021 (11) TMI 794
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in repaying dues - Financial Creditors - non-performing assets - contention of Appellant is that the date of default has not been mentioned in the Form-1 filed before the ‘Adjudicating Authority’, therefore the application filed under Section 7 is defective - HELD THAT:- It is seen that the respondent herein has enclosed fact sheet relating to details of debt granted and default made by the Corporate Debtor. The date of NPA is mentioned as 28.11.2018, however the Learned Counsel for the Respondent contended that there is a typographical error that instead of 27.11.2018 by mistake the date has been mentioned as 28.11.2018 and from many other documents, the date of default is shown as 27.11.2018 in support of the said date of default, there are other documents filed to establish the date of default is 27.11.2018.
It is also evident from the SARFAESI Notice issued under Section 13(2) by the Financial Creditor dated 28.01.2019 to the Corporate Debtor in schedule ‘A’ at Page 701 of Appeal Paper Books, Column I, the Financial Creditor Bank, the date of Non-Performing Assets (NPA) shown as 27.11.2018. Further the OA filed before the DRT-II at Chennai by the Consortium of Banks in the list of Non-Performing Assets (NPA) in respect of R1 it is shown as 27.11.2018. Therefore, it is evident that the date of default is 27.11.2018, though it did not mention in Part IV of Form-1 - it is evident that the date of default is 27.11.2018. Further in Column 8 of Part V in Form-1, the applicant is entitled to attach documents along with Form to prove the existence of Financial Debt, the amount and date of default. Therefore, it is presumed that the applicant, Financial Creditor complied with the procedure as prescribed in Form-1.
In the present Appeal, though the first date of NPA is with respect to Axis Bank i.e. 10.02.2017. However, the RBI circulars/Directives provides filing of independent application by the Financial Creditor i.e. the SBI before the Adjudicating Authority (NCLT) under Section 7 of the IBC. Accordingly, the Applicant the 1st Respondent herein filed application under Section 7 of the IBC for initiating the CIRP against the Corporate Debtor independently taking into the date of NPA/default and the amount of debt and default. There is no dispute with regard to the existence of debt and default committed by the Corporate Debtor. However, there is only an objection raised with respect to omission to mention the date of default in Part IV of Form 1 filed before the Adjudicating Authority. It is evident from the records that the date of NPA of the SBI is 27.11.2018 and the application filed by the Financial Creditor on 19.12.2019 even if the 90 days period prior to NPA is taken into consideration for the purpose of deciding default - as per Col.8 of Part V in Form 1 regarding particulars of Financial Debt documents, records and evidence of default to be attached, the Financial Creditor has shown sufficient documentary evidence to establish the date of NPA i.e. 27.11.2018 and the Adjudicating Authority has taken note of the same and admitted the application. This ‘Tribunal’ do not find any illegality in admitting the application.
In view of the acknowledgement dated 16.08.2018 given by the Corporate Debtor the period of limitation also can be extended under Section 18 of the Limitation Act, 1963 and the Hon’ble Supreme Court in Laxmi Pat Surana held that: “a subsequent acknowledgement to extend the limitation, being a fresh date of default of date. Even taking into consideration, the limitation period of three years from 16.08.2018, the application filed on 19.12.2019 is well within the period of limitation - the Respondent/Financial Creditor had stated the date of default in the pleadings and in other documents which the Corporate Debtor has received and acknowledged, therefore as held supra the non-mentioning of the date of default in Col. IV is not fatal to the application and on the sole ground, the application cannot be rejected mere taking a technical impediment as held by the Hon’ble Supreme Court that ‘it is only a directory’.
This Tribunal is of the firm opinion that the Appeal is devoid of merits and liable to be dismissed - Appeal dismissed.
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2021 (11) TMI 793
Initiation of contempt proceedings against the Respondent for wilful disobedience - Jurisdiction of NCLT - Section 425 of the Companies Act, 2013 r/w Section 12 of the Contempt of Courts Act, 1971 and Rule 11 of the NCLT Rules, 2016) - HELD THAT:- This ‘Tribunal’ relevantly points out that the ‘Adjudicating Authority’ (National Company Law Tribunal) in Contempt Application No.A-01(PB) of 2020 in CA-1081/2019 in (IB)-560(PB)/2017 (filed under Section 425 of the Companies Act, 2013 r/w Section 12 of Contempt of Courts Act and Rule 11 of the NCLT Rules, 2016) seeking to initiate the contempt proceedings against the Respondent therein (1st Respondent in the Appeal) for wilful disobedience of the Order dated 7.11.2019 passed by the Tribunal in Contempt Application No.A-01(PB) of 2020 in CA-1081/2019 in (IB)-560(PB)/2017 on 23.9.2020, had finally dismissed the application by observing that ‘IBC’ is devoid of ‘contempt jurisdiction’, leaving it open to the Appellant/Applicant to seek remedy through recourses available.
The definition of Section 5(1) of the I&B Code under Part II ‘Insolvency Resolution and Liquidation for Corporate Persons’ Chapter I ‘Preliminary’ means the ‘Adjudicating Authority’ for the purpose of this Part as ‘National Company Law Tribunal’ constituted under Section 408 of the Companies Act, 2013. Section 408 of the Companies Act, 2013 provides for the constitution of ‘National Company Law Tribunal’. Section 410 of the Companies Act, 2013 pertains to ‘constitution’ of the ‘Appellate Tribunal’ - the National Company Law Tribunal is to act as an Adjudicating Authority for the purpose of matters pertaining to the I&B Code.
Under the I&B Code, 2016 the Adjudicating Authority (National Company Law Tribunal) adjudicates all proceedings before it and renders its decision. Just because the I&B Code does not specifically mention about the contempt provisions, it cannot be said that the ‘Adjudicating Authority’ (National Company Law Tribunal) has no powers of contempt. If one is to give such a restricted interpretation that the Adjudicating Authority (National Company Law Tribunal) has no jurisdiction of contempt, then it orders cannot be implemented and in fact, the I&B Code will remain in ‘Black Letters’ without a teeth to bite, in the considered opinion of this Tribunal - as per Section 425 of the Companies Act, 2013 it is clear that the ‘Contempt proceedings’ can be exercised by the ‘National Company Law Tribunal’, being the ‘Adjudicating Authority’ as per Section 5(1) of the I&B Code. Also that a conjoined reading of Section 408 and 425 of the Companies Act, 2013 will unerringly points out that the power to punish for ‘Contempt’ is vested with the ‘Tribunal’ shall be while adjudicating on matter not only confine to the Companies Act, 2013 but also to matters relating to the I&B Code, 2016.
The Tribunal (NCLT) and the Appellate Tribunal (NCLAT) have the same ‘jurisdiction’, ‘powers’ and ‘Authority’ in respect of contempt of it as the ‘High Court’ viewed in that perspective, the conclusions arrived at by the Adjudicating Authority (National Company Law Tribunal) in the impugned order by making it clear that the IBC is devoid of contempt of jurisdiction and thereby dismissing the application, leaving it open to the Appellant/Applicant to seek remedy through recourses available, are clearly unsustainable in the eye of Law and the same is interfered with by this ‘Tribunal’ in furtherance substantial cause of justice, sitting in ‘Appellate Jurisdiction’.
Application allowed.
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2021 (11) TMI 792
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of its debt - Operational Creditors - existence of debt and dispute - HELD THAT:- The Respondent has reported deficiency of services from October, 2018 and also the issue of not getting the supporting documents form the Appellant showing compliances of various labour laws in spite of numerous correspondence between them - Correspondence between the parties in the form of email reflects prior to issue of demand notice revolving around non-submissions of documents for compliance of various labour laws as per agreement between them as also supply of shortage of staff and other related issue.
The Hon’ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has laid down that Adjudicating Authority must reject the Application if a notice of dispute has been received by Operational Creditor.
The Appellant has failed to comply with labour laws leading to labour dispute before the labour commissioner and the Respondent has to release certain amount directly to the employees of the Appellant - It is proved beyond doubt that the Appellant is chasing for payments which is not the object of IBC.
It is amply clear that the Order passed by the Adjudicating Authority is in order and requires no review or reconsideration. There is no infirmity in the order passed by Adjudicating Authority - Appeal dismissed.
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2021 (11) TMI 791
Auction sale - Validity of demand notice for pending dues of property tax issued by the Appellant to Respondent No. 1 - Respondent No. 1 was a party to the proceedings under IBC or not - limit of jurisdiction by adjudicating dispute regarding Municipal Tax on a third party - HELD THAT:- The liquidator had a duty to prepare an asset memorandum containing the value of the assets. Clause (f) of sub regulation 2 of regulation 34 stipulates the inclusion of “any other information that may be relevant for the sale of the asset”. Regulation 13 of the said Regulations (supra) enjoins upon the liquidator to submit a preliminary report to the Adjudicating Authority with the Asset Memorandum. Therefore, the liabilities with respect to the assets should have been brought to the notice of the Adjudicating Authority by the liquidator.
The outstanding dues of the property tax relating to period prior to sale confirmation are thus dues that are akin to claim of an unsecured creditor (Bhatpara Municipality in the present case) and should be discharged in terms of the properties regarding distribution of assets given in section 53 of IBC. The auction-purchaser cannot be held liable to pay any such dues relating to period prior confirmation of sale - We are unable to accept the plea made by the Appellant that Respondent No. 1 should not be absolved from paying outstanding dues relating to the property stated in the demand notice dated 1.2.2021 amounting to ₹ 68,09,123.61. The demand notice is quashed.
The auction-purchaser is held to be not liable to pay to the Appellant the amount as demanded by its notice dated 1.2.2021 - Appeal dismissed.
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2021 (11) TMI 790
Seeking liquidation of Corporate Debtor - Section 33(1) of IBC - HELD THAT:- It is seen that in the 11th CoC meeting held on 26.05.2021, the CoC with majority of 100% voting rights approved to apply before the Adjudicating Authority for liquidation of the Corporate Debtor under section 33 (2) of the IBC.
It is permitted to initiate liquidation process against the Corporate Debtor - moratorium ceased to exist - application allowed.
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2021 (11) TMI 789
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 CoC in the 4th meeting held on 11.05.2021 had unanimously resolved to liquidate the Corporate Debtor and also resolved to appoint the Applicant herein Mr. Darshan Bharatbhai Patel bearing registration No. IBBI/IPA-001/IP-P01579/2018-19/12442 as a liquidator under Section 34 (4) of the Code. Further in accordance with Regulation 39D of CIRP Regulations, liquidator's fee was fixed to the tune of ₹ 40,000/- per month. Shri Rushi Dattani, being suspended management present in the 4'h meeting of CoC stated that he has no objection if the Corporate Debtor is liquidated.
The Corporate Debtor is ordered to be liquidated - 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 788
Liquidation of Corporate Debtor - Section 33 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- A bare perusal of the provision shows that if a person is aggrieved by the order of the liquidator, then the aggrieved person/Creditor may file an appeal within 14 days of the receipt of the such decision. Admittedly, as per the averments made in the memo of appeal, the liquidator has communicated the rejection of the claim to the appellant vide email dated 09.08.2019, whereas this appeal is filed on 18th February, 2021, much after the order of rejection that was communicated to the appellant by the liquidator.
It is noticed that this application was filed on 28/08/2019, whereas the order of the Liquidator was communicated to him on 09/08/2019. Admittedly, the first application was also filed beyond 14 days, as required under Section 42 of the IBC, 2016 - we are unable to accept the contention of the applicant that due to lockdown, the applicant could not file the appeal within time.
The first application filed under Section 60 (5) of the IBC, 2016 was filed after the 14 days of the prescribed period of the limitation and this application has also been filed much after the withdrawal of that application - the appeal is barred by limitation and on this ground alone, it is liable to be dismissed.
Appeal dismissed.
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2021 (11) TMI 787
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- On Perusal of Part- IV of the Application which contains the Particulars of Operational Debt the Date of Default is mentioned as 21.04.2016 the date on which the last demand was raised by the Operational Creditor however, the present application has been filed on 10.10.2019 which is way beyond the period of three years hence, it can be ascertained that the present application has been filed beyond the period of three years from the date of default.
The Hon'ble Supreme Court in BABULAL VARDHARJI GURJAR VERSUS VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR. [2020 (8) TMI 345 - SUPREME COURT] has held that the right to apply under the code accrues on the date when the default occurs and that the date of commencement of the code is not the trigger point for the limitation and if the default had occurred over three years prior to the date of filing of the application, the application would be time-barred.
It is clear that the Present application filed under section 9 of IBC, 2016 fails the test of limitation - since the debt is time-barred, there are no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016.
Application dismissed.
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2021 (11) TMI 786
Seeking approval of the Resolution Plan - Section 30(6) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- All the requirements of Section 30 (2) are fulfilled. In respect of compliances regarding CIRP Regulations especially Regulations 38 and 39, the Resolution Professional has certified in Form-H and explained in details that the Resolution Plan has complied with all the required Regulations.
There is no impediment in giving approval to the Resolution Plan. Accordingly, the Resolution Plan is approved, which was earlier approved by the CoC by the majority vote of 99.09% - It is clarified that Section 30 (2) (f) of the Code mandates that the Resolution Plan should not be against any provisions of the existing law. The Resolution applicant therefore, shall adhere to all the applicable laws for the time being in force under the proposed Resolution Plan, whether or not specifically provided therein.
Application allowed.
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2021 (11) TMI 785
Business Auxiliary services - Short payment of service tax - non-prosecution of the case - HELD THAT:- The matter has been adjourned considerable number of times in past on the request of both the sides. For this reason why we had made it clear vide our order on 23rd September 2021, that no further request for adjournment from either of side shall be entertained and the matter shall be taken up for hearing next time.
About ₹ 227 crore of Service Tax with interest and equivalent amount of penalty is involved in the matter. The Appellant, M/s Air India is Public Sector Undertaking (as it was at the time of adjudication and till recently) and Ministry of Finance are respondent in matter. Both arms of Central Government litigating the matter for what reason and Counsels appointed by both the sides seeking adjournments after adjournments do not benefit the cause of litigants. Fairly such protracted and continued litigation between the arms of the government do not benefit the cause of public exchequer and shakes the faith of the public in the entire system.
Taking note of the Rule 20 of CESTAT Procedure Rule, 1982, we dismiss this appeal for non prosecution - Appeal dismissed.
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2021 (11) TMI 784
Refund of education cess and higher education cess - restriction in terms of Notification Nos. 19/2008-CE dt. 27.03.2008 and 34/2008-CE dt. 10.06.2008 - HELD THAT:- It is an admitted fact that earlier orders of this Tribunal have been accepted by the Revenue and no appeal has been filed against those orders. In the absence of any challenge to the orders of this Tribunal, the adjudicating authority was duty bound to implement the orders of this Tribunal which they failed to do so. Further, in earlier round of litigation, the orders of this Tribunal were final. The decision relied upon by the ld. AR in the case of ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT VERSUS SAURASHTRA KUTCH STOCK EXCHANGE LTD [2008 (9) TMI 11 - SUPREME COURT] is not applicable to the facts of this case as in that case, the issue was alive by filing the application for rectification of mistake. There is no such case in these matters, therefore, the said decision cannot be applied here.
The adjudicating authority is directed to implement the orders passed by this Tribunal in earlier round of litigation as chart mentioned herein above within 30 days of receipt of this order - Appeal disposed off.
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