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Showing 101 to 120 of 1398 Records
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2020 (10) TMI 1298
Principles of natural justice - no effective opportunity has been granted to the petitioner - HELD THAT:- The impugned order of assessment is thus bad in law insofar as no effective opportunity has been granted to the petitioner and the same is thus set aside.
Let the impugned order of assessment dated 24.01.2020 be treated as a show cause notice in response to which, the petitioner will file a preliminary reply within a period of four weeks from today without awaiting any further notice in this regard. If a reply is received from the petitioner within four (4) weeks, proceedings for assessment shall be taken up, the petitioner heard and an order of assessment be passed denovo in accordance with law.
Petition disposed off.
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2020 (10) TMI 1297
Seeking for issuance of directions for liquidation to Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In accordance with Regulation 27 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (“CIRP Regulations”), the erstwhile IRP had appointed two registered valuers, i.e., Mr. Lakhan Lal Gupta and Mr. Vijay Vinod Bhatia, to determine the liquidation value of the Corporate Debtor in accordance with Regulation 35 of CIRP Regulations - in the same meeting the RP had submitted the estimated liquidation value of the assets of the CD based on the valuation reports obtained from the valuers, is approximately ₹ 18,40,85,597/- as per the report of the valuers.
The application is allowed by ordering liquidation of the corporate debtor, namely M/s.Marga Industries.
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2020 (10) TMI 1296
Cancellation of registration of petitioner - non filing of statuary returns for three consecutive tax periods - continuous period of six months under clause (b) or clause (c) of sub-section (2) of section 29 of the CGST Act, 2017 - non-speaking order - whether or not the appeal filed against the order of cancellation to be decided are proper? - HELD THAT:- In the instant cases the appeal has been filed by delay from the normal period prescribed under Section 107(1) of the CGST Act, 2017. Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017.
The appellant had not responded to the Notice to return defaulter issued u/s 46 for not filing return in form GSTR-3A dated 02.01.2020 and show cause notice dated 04.02.2020 issued for cancellation of registration nor filed pending returns by the proper officer - where a registered person fails to furnish the returns u/s 39 or 45 of the Act, even after the service of Notice u/s 46, the proper officer is required to pass an order assessing the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered, within a period of five years from the date of filing annual return for the financial year to which the tax not paid relates.
The contention made in the grounds of appeal of the appellant is tenable and the order dated 21.07.2020 determining the liability of the appellant is not legally correct and proper. The appellant has filed returns upto date of cancellation of registration hence, I find that the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case. At this stage the appellate authority is in no position to decide the issue on merit on the basis of available records presented by the appellant. The proper officer/adjudicating authority is required to examine the issue afresh on the available records in the matter and ascertain the tax liability of the appellant.
The proper officer is directed to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest, penalty & status of returns and recover Govt. dues, if any arise from the appellant in terms of provisions of the CGST Act, 2017 and rules made thereunder - the registration of appellant may be considered for revocation by the proper officer - appeal allowed.
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2020 (10) TMI 1295
Licit acquisition and possession of the exotic animals/birds - Issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced "Voluntary Disclosure Scheme" - HELD THAT:- The SLP is dismissed.
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2020 (10) TMI 1294
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:- The first invoice was raised by the petitioner on 19.12.2013 and the due date of payment was 18.04.2014 and the last invoice was raised by the petitioner on 23.01.2014 and the due date of payment was 23.05.2014 and on the basis of invoices, the date of default is the date of payment, it means since the amount was not paid on 23.05.2014, therefore, on that day the default had occurred - In view of the Article 137 of the Limitation Act, the petitioner was required to file an application within 3 years from the date, when the right to apply accrues and since due date of payment was of 23.05.2014, therefore, the petitioner was required to file the application within three years from the date of first default that is from 23.05.2014 but the present application has been filed on behalf of the petitioner on 30.06.2020, therefore, it is much after the period of three years.
The documents are of the dated 18.01.2016, 07.07.2016 and 02.02.2017 and last one upon which the petitioner has placed reliance is of dated 15.12.2017 after going through these documents we noticed that, the document dated 15.12.2017 is a credit notice memo issued by the petitioner and not by the respondent, therefore, this credit note cannot be treated as an acknowledgement of debt. So far the document dated 07.07.2016 is concerned of course, in this document, there is a signature of the director of the respondent company, which is addressed to the Deutsche Bank AG regarding the payment of the pending invoices and the two invoices are referred which are of dated 26/12/2013 and if we accept that this letter will be treated as acknowledgement of debt under Section 18 of the Limitation Act then the limitation shall run from the date of acknowledgement i.e. from 07.07.2016.
Even if letter is also treated as acknowledgement of debt then the limitation shall run from the date i.e. 02.02.2017 whereas the present application is filed on 30.06.2020, which is much after the period of 3 years as required under Article 137 of the Limitation Act, so, on this ground also, the present application in our considered view is barred by limitation - Application dismissed.
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2020 (10) TMI 1293
Exemption to factories from observing some of the obligations which employers have to fulfil towards the workmen employed by them - validity of the state's notifications dated 17 April 2020 and 20 July 2020 - whether the notifications fall within the ambit of the power conferred by Section 5 of the Factories Act?
HELD THAT:- The validity of the notifications depends on whether the COVID-19 pandemic and the nationwide lockdown qualify as a 'public emergency' as defined in Section 5. The statute provides both the language and the dictionary to interpret it - Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.
Principle of proportionality - HELD THAT:- The explanation to Section 5 was introduced by the Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 - with effect from 26 October 1976. Interestingly, it was an amendment which was brought in during the internal emergency declared in June 1975 purportedly on account of "internal disturbances". The effect of the explanation is to circumscribe the ambit of what constitutes a public emergency. The explanation constricts the expression in two ways: first, by confining it to specific causes; and second, by requiring that a consequence must have emanated from those causes before the power can be exercised. Under Section 5 a situation can qualify as a 'public emergency', only if the following elements are satisfied: (i) there must exist a "grave emergency"; (ii) the security of India or of any part of its territory must be "threatened" by such an emergency; and (iii) the cause of the threat must be war, external aggression or internal disturbance. The existence of the situation must be demonstrated as an objective fact. The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.
Precedent on 'public emergency' and 'security of the state' - HELD THAT:- The powers Under Article 352 have been invoked thrice by the President to declare an emergency. An emergency was declared for the first time in 1962 due to the Chinese aggression on Indian territory. The emergency was revoked in 1968. In 1971, when hostilities broke out with Pakistan, an emergency was proclaimed by the President on the ground that the security of India was threatened by external aggression. While this proclamation was in force, another proclamation was issued by the President on 25 June 1975 declaring that a "grave emergency exists whereby the security of India is threatened by 'internal disturbance'." Both these proclamations were revoked in March 1977 - The Parliamentary amendments to Article 352 are the product of experience: experiences gained from the excesses of the emergency, experiences about the violation of human rights and above all, experiential learning that the amalgam of uncontrolled power and unbridled discretion provide fertile conditions for the destruction of liberty. The sobering lessons learnt from our not-too-distant history should warn us against endowing a statute with similar terms of a content which is susceptible of grave misuse.
Interpreting 'public emergency' in Section 5 of the Factories Act, 1962 - HELD THAT:- The economic hardships caused by COVID-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist Under Section 5. That is absent in the present case.
Scheme and Objects of the Factories Act, 1962 - HELD THAT:- While enacting the Factories Act, Parliament was cognizant of the occasional surge of the demand for, or requirement of, the manufacture of certain goods which would demand accelerated production. The law - makers were aware of the exigencies of the war effort of the colonial regime in World War II, with its attendant shortages, bottlenecks and, in India, famine as well. Section 64(2) of the Factories Act envisages exemption from certain provisions relating to working hours in Chapter VI, for instances such as urgent repairs, supplying articles of prime necessity or technical work, which necessarily must be carried on continuously. Section 65(2) enables classes of factories to be exempt from similar provisions in order to enable them to cope with an exceptional pressure of work. However, these exemptions are circumscribed by Section 64(4) and 65(3) respectively, at limits that are significantly less onerous than those prescribed by the notifications in question.
The impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.
Social and Economic Value of 'Overtime' - HELD THAT:- The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the Rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats - The provisions embodied in Chapter VI of the Factories Act reflect hard-won victories of masses of workers to ensure working conditions that uphold their dignity.
Constitutional vision of social and economic democracy - HELD THAT:- The Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation. To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them - The 'right to life' guaranteed to every person Under Article 21, which includes a worker, would be devoid of an equal opportunity at social and economic freedom, in the absence of just and humane conditions of work. A workers' right to life cannot be deemed contingent on the mercy of their employer or the State. The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers' right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution.
This Court is cognizant that the Respondent aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy. Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an 'internal disturbance' of a nature that posed a 'grave emergency' whereby the security of India is threatened. In any event, no factory/classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an 'internal disturbance' causes a grave emergency that threatens the security of the state, so as to constitute a 'public emergency' within the meaning of Section 5 of the Factories Act.
Notification No. GHR/2020/56/FAC/142020/346/M3 dated 17 April 2020 and Notification No. GHR/2020/92/FAC/142020/346/M3 dated 20 July 2020 issued by the Labour and Employment Department of the Respondent State, are quashed - petition allowed.
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2020 (10) TMI 1292
Classification of goods - rate of tax - Topical Antiseptic Solution/Topical Antiseptic Hand Sanitiser - classifiable under HSN code 3004 90 87 (medicament) or 3808 94 00 (disinfectant)? - HELD THAT:- Heading “3808” under the Customs Tariff Act, 1975 also covers the goods of the same description as provided under entry no. 87 except with the condition that such goods shall be put up in forms or packings for retail sale or as preparations or articles. Further Rule 1 of rules for the interpretation provides that the classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes - although the term “disinfectants” appears to be limited to agents which are generally applied on inanimate objects, it also includes “sanitizers” expressly. Therefore the ambit of the terms used in the heading 3808 extends to even those goods such as sanitizers which are applied on the human hands and not just on an inanimate objects.
The Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, HYDERABAD VERSUS M/S SARVOTHAM CARE LTD. [2015 (8) TMI 250 - SUPREME COURT] has held that suggestion that shampoo should be used once a week and on other days, normal shampoos may be used, showed it was to be used like medicine, unlike other normal Shampoos. It was more so as it was not used for cleaning hair. Hence, shampoo was classifiable as medicine under sub-heading 3003.10 of Central Excise Tariff and not under sub-heading 3305.99 ibid as ‘preparation for use on hair'.
Even sanitizers are manufactured based on formulations Ethanol 70% (v/v) or Isopropyl alcohol 75% (v/v), Chlorhexidine Gluconate Solutuion Ip 2.5% v/v and Sanitizers can aid in the prevention of the human ailment in the form of COVID-19 disease; it does not qualify as medicaments because for the goods in question to be treated as “medicament”, it should cure or prevent a specific ailment. Goods which are meant for general hygiene or well-being of a person which may incidentally lead to the prevention of a host of illnesses or ailments cannot be considered as a medicament. It is for this reason that goods like soaps, ordinary shampoos, etc. are not treated as medicaments. The World Customs Organization has also classified the Hand Sanitizer under HSN 3808.94.
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2020 (10) TMI 1291
Seeking grant of anticipatory bail - civil proceedings given in a criminal colour or not - collection/recovery agent for commercial transaction between the parties - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- A mere breach of a promise, agreement or contract does not, ipso facto, constitute a criminal breach of trust, without there being a clear case of entrustment. Further, the transaction had taken place in the year 2008 and the complaint was lodged in the year 2015. For constituting an offence of cheating, the complainant is required to show that the petitioner had fraudulent or dishonest intention at the time of making promise or representation. In this case, no such promise or representation was made by the petitioner. The transaction between the petitioner and the 2nd respondent is a contract, mere failure of agreement and contract would not lead to offence of cheating and misappropriation. The 2nd respondent to recover the amount and its dues, instituted civil proceedings, seeking recovery of loan amount, which is still pending for adjudication. It is observed in this case that it is difficult to establish conspiracy by direct evidence or to infer in the absence of any such averments.
This Court finds that the dispute between the parties constitute only a civil wrong and not a criminal wrong. The Hon'ble Apex Court in the case of Inder Mohan Goswami Versus State of Uttaranchal [2007 (10) TMI 550 - SUPREME COURT], elaborately dealt on this aspect, questioned dual the proceedings and observed that the criminal prosecution are not to be used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused when dispute between the parties constitute only a civil wrong and not a criminal wrong and also observed that allowing the proceedings to continue would be an abuse of process of Court or that the ends of justice require that the proceedings ought to be quashed.
It is clear that a civil dispute has been given in a criminal colour. At the most, it can only be said that the inability of the petitioner to return the loan amount cannot give rise to criminal prosecution. The respondent by himself and his family members, instituted a civil proceedings for seeking recovery of loan amount - Petition allowed - decided in favor of appellant.
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2020 (10) TMI 1290
Initiation of CIRP - Extension of period of limitation by acknowledgement of debt - Corporate Debtor failed to make repayment of its dues - it was held by NCLAT, where the appeal was rejected - HELD THAT:- There are no merit in the civil appeal. The civil appeal stands dismissed.
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2020 (10) TMI 1289
Cheating - fraudulent representation of providing 2 BHK flat and dishonestly induced to pay the amount of ₹ 9,04,429/- - petitioners neither gave the flat nor returned the money - petitioners were declared proclaimed persons under Section 82 of the Cr.P.C. - petitioners were absconding or not - HELD THAT:- The learned Chief Judicial Magistrate, Karnal did not record her satisfaction that in view of the material on record there was reasonable ground to believe that the petitioners had absconded or were concealing themselves so that warrant of arrest issued against them could not be executed. Consequently, the condition essential for issuance of proclamation against the petitioners was not satisfied.
In the present case vide order dated 02.08.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 04.09.2019. The proclamation was published by SI Dharampal on 04.09.2019 and the petitioners did not get statutory minimum period of thirty days for their appearance before the Court on 04.09.2019 - Vide order dated 04.09.2019 learned Chief Judicial Magistrate, Karnal adjourned the case to 05.10.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Karnal could not extend the time by simply adjourning the case for awaiting appearance of the petitioners and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C.
It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 05.10.2019 in breach of the prescribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside - Petition allowed.
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2020 (10) TMI 1288
Concessional rate of tax - inter-state sales - sale of goods effected to the Lakshadweep Islands through a dealer authorized by the Lakshadweep Administration - deduction permissible on damaged goods - there is no allegation of unaccounted sale or stock difference - Section 6(1) of the KVAT Act and Rule 12C of the KVAT Rules - HELD THAT:- What is produced along with it is an Application to Export made by the dealer to the Port Officer at Calicut. The Application to Export is not a document similar to a shipping bill. It does not evidence the movement of goods from the Port at Calicut to Lakshadweep. It is at best a desire expressed by the purchasing dealer, the fulfillment of which is the essence of the concession granted. Further, it has to be noticed that though there is a recital in Form No.42 that the purchasing dealer is recognized by the Administrator, UT of Lakshadweep, there is nothing produced to evidence the same - there can be no concessional rate claimed by the revision petitioner on the facts of these years since there is no document produced which could prove the movement of goods to the Islands, as would a shipping bill - issue regarding concessional rate of tax, is answered against the assessee and in favour of the revenue.
Allowance claimed on the damaged goods - HELD THAT:- Despite the stock details having been tabulated in the Annexures produced, as the learned Government Pleader alertly points out, the claim was not substantiated with records, ledgers or books of accounts before the fact finding authorities - the fact finding authorities, including the Tribunal has recorded that nothing is produced to substantiate the claim. Even then, 50% of what was claimed was allowed presumably on realisation of the basis of such damage occasioned for reason of lumping of cement due to exposure to natural elements - the issue is not answered, for it being not a question of law.
Petition disposed off.
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2020 (10) TMI 1287
Seeking control over subsidiary (Solitaire Infomedia Private Limited) assets - Seeking control on the ground they are connected to the corporate debtor company - application is filed by the RP of the Corporate Debtor - HELD THAT:- Being no provision permitting this Bench to grant such relief, the application is dismissed.
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2020 (10) TMI 1286
Application for early hearing of appeal - HELD THAT:- It is open to the respective parties to make a mention before the National Company Law Tribunal, Court No. I, Mumbai Bench, for taking up the CA No. 1008/MB/2020 in CP 428/MB/2018 pending on its file and if such a mention is made, the National Company Law Tribunal, Court No. I, Mumbai Bench, is required to take up the matter ‘For Hearing’ to proceed further, of course in the manner known to Law and in accordance with Law and pass orders on merits of course, after providing adequate opportunities to the respective sides, by adhering to the principles of Natural Justice.
Appeal disposed off.
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2020 (10) TMI 1285
Reopening of assessment u/s 147 - notice after the expiry of 4 years from the end of relevant Assessment Year - addition of estimated addition of alleged unaccounted investment - Addition on the basis of Valuation Report of DVO - CIT(A) while deleting the estimated addition recorded that there is no evidence with AO for such estimated additions and he directed the AO to obtain a report of DVO under section 142A - HELD THAT:- The onus was on the AO to bring evidence on record to prove that the assessee has paid more amounts while purchasing these three pieces of land, than what has been recorded in his books of account. The AO has neither recorded such averments in the reasons recorded nor raised any question the assessee during the assessment. The AO directly came on the conclusion on the basis of the report of DVO that assessee made investment which is not recorded in the books of assessee. The AO without discharging his onus directly concluded on unexplained investment. In our view section 142A merely speaks about the estimate of the valuation of investments. Estimate cannot take the place of actual investment.
The Hon’ble Rajasthan High Court in Sardar Kehar Singh [1990 (11) TMI 32 - RAJASTHAN HIGH COURT] also held that it is well established that reopening of assessment on the basis of subsequent valuation report is not justified inasmuch as the report is nothing more than a mere opinion. Such a report by itself does not lead to a reasonable belief of concealment of income justifying action under clause (a) of section 147, nor does it constitute 'information' justifying action under clause (a) of the said section and quashed the notice under section 147.
We are of the view that once the assessment under section 143(3) was completed and the AO has already made addition on the same issue, and on appeal it was deleted by ld CIT(A), the reopening of the assessment on the same issue on basis of report of DVO in not valid. Therefore, all subsequent action thereto is void-ab initio. Thus, the assessee succeeds on the legal issue.
Even on merit we note that Hon’ble Jurisdictional High Court in Gayatri Enterprises [2019 (9) TMI 777 - GUJARAT HIGH COURT] held that unless it was established on record by department that as a matter of fact, consideration as alleged by department did pass to seller from purchaser, it could not be said that department had any right to make any additions. It was further held that as per section 69B, no addition could be made under said section merely on basis of presumption. We have noted that the AO has not brought any material on record that the assessee has paid/invested money in purchase of these three plots, which is not recorded in the books of the assessee. Thus, in view of the above discussions the assessee also succeeds on merit. - Decided in favour of assessee.
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2020 (10) TMI 1284
Seeking grant of regular bail - on being enlarged on interim bail, the applicant filed regular bail application under Section 439 Cr.P.C. - learned A.S.G.I. in rebuttal submits that the statement of P.W.-3 cannot be relied upon; P.W.-3 was summoned only to verify the hotel guest register; he further submits that P.W.-3 could not tell the exact date of C.B.I. raid - HELD THAT:- Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant- Ranveer Singh @ Ranbir Singh involved in 120B I.P.C. and Section 7, 7A & 8 of the Prevention of Corruption Act, 1988, be released on bail on his furnishing a personal bond of Rs. One lac with two sureties (one should be of his family members) each in the like amount to the satisfaction of the court concerned with the following conditions imposed.
Application allowed.
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2020 (10) TMI 1283
Seeking orders for liquidation of the Company/Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It would appear that despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved with 89.19% voting share in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(1)(a) of the Code.
Therefore, there are no option than to pass an order for liquidation of the Company in the manner laid down in Chapter-III of the Code - Corporate Debtor i.e. Parekh Aluminex shall be liquidated in the manner as laid down in Chapter-III of the Code - application allowed.
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2020 (10) TMI 1282
Profiteering - validity of order passed by the National Anti-Profiteering Authority - HELD THAT:- This Court directs the petitioner to pay the principal profiteered amount of ₹ 1,04,77,604/- in six equated installments to the flat buyers proportionately, commencing 16th November, 2020. The interest amount directed to be paid as well as the penalty proceedings initiated by the respondents are stayed till further orders.
List on 03rd November, 2020.
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2020 (10) TMI 1281
Seeking grant of Interim Bail - bail sought on medical grounds for a period of two months while directing listing of the regular Bail Application - HELD THAT:- The report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the Respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to Respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that Respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that Respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to Respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the Respondent on interim bail on medical grounds.
Humane treatment to all including an Accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison.
Even as on date, due medical care is being taken of the Respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable - Appeal allowed.
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2020 (10) TMI 1280
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- In the present matter, this Adjudicating Authority finds the debt and default is admitted by the corporate debtor. Thus it is well established that there is the existence of debt and default on behalf of the corporate debtor - this Adjudicating Authority is of the view that the corporate debtor has acknowledged the debt on 28.04.2016, the letter acknowledgement is annexed as Annexure 22 of the petition as well as the accounts of the corporate debtor was declared NPA on 30.09.2016 and the present petition was filed before this Adjudicating Authority on 11.01.2019, thus it is found well within limitation, within three years from the date of acknowledgment of debt.
This Adjudicating Authority finds that the petitioner succeeded in establishing that there is a debt and existence of default on behalf of corporate debtor and the application is complete in all respect. It is seen that the amount in default is in excess of the minimum threshold limit fixed under IBC - Further, as the date of default is 28.04.2016, it is much prior to the amendment made in Insolvency and Bankruptcy Code on 05th of June, 2020 whereby Sec 10A was inserted, thus the amendment made will not have any effect in the present petition.
This adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent Company - Petition admitted - moratorium declared.
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2020 (10) TMI 1279
Seeking approval of Resolution Plan - Section 31 of the IB Code - HELD THAT:- It is found that the COC has approved the plan with 100% voting in favour of the plan. More so, the Resolution Applicant fulfils the mandatory contents of the Resolution Plan as provided under Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016.
From the object of the IBC, it is amply clear that the “Resolution is Rule and the Liquidation is an Exception”. Liquidation brings the life of a corporate to an end. It destroys organizational capital and renders resources idle till reallocation to alternate uses. Further, it is inequitable as it considers the claims of a set of stakeholders only, if there is any surplus after satisfying the claims of a prior set of stakeholders fully. The IB Code’, therefore, does not allow liquidation of a corporate debtor’ directly. It allows liquidation only on failure of corporate insolvency resolution process’. It rather facilitates and encourages resolution in several ways.
The Adjudicating Authority is of the opinion that not allowing the Clause 19(xv) i.e. Reliefs and Concessions sought by the Resolution Applicants of the Resolution Plan, is not going to make any hindrance for proper implementation of the Resolution Plan as those are the subject matter of the concerned /appropriate Competent Authorities - the Adjudicating Authority, is of the considered opinion and also being satisfied that the Resolution Plan as approved by the Committee of Creditors (CoC) meets the requirements as referred to under section 30(2) of the Code.
Resolution plan approved - application allowed.
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9911796707
