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Showing 181 to 200 of 1925 Records
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2019 (8) TMI 1746
Seeking permission to allow Resolution Applicant to withdraw the Resolution Plan - Seeking direction to Resolution Professional to return / refund the Bank Guarantee and the Earnest Money and 10% of the total consideration deposited by the Applicant - Section 60(5) of IBC, 2016 R/w Rule 11 of NCLT Rules, 2016 - HELD THAT:- This Tribunal approved the Resolution Plan of the Resolution Applicant on 04.06.2019. The Resolution Applicant filed Applications seeking certain clarification for successful implementation of the Resolution Plan.
The Resolution Applicant is allowed to take over all the immovable assets including lease rights mortgaged to secured creditors etc. So, the lease hold rights held by the Corporate Debtor will be automatically taken over by the Resolution Applicant - the creditors to assign the interest rights and obligation arising out of Corporate Guarantee given by M/s. Aster Private Limited to be assigned in favour of Resolution Applicant.
It is very clear as per Section 101 of Transfer of Property Act, no subsequent mortgagee or charge holder shall pay to foreclose or sale of such property without redeeming the prior mortgage or charge. If the contention of the Resolution Applicant is correct that ICICI Bank Ltd issued notice under Section 13(2) of SARFAESI Act to the subsequent charge holder, then it is bound to clear the 1st mortgage or charge which is to be transferred in favour of Resolution Applicant on payment of upfront amount. Thus, law is very clear that subsequent mortgage or charge holder can only proceed over the property only when it discharge the prior mortgage. Actually Resolution Plan provides all details and Resolution Applicant submitted the plan after seeing the Information Memorandum.
There is no question of giving permission to Resolution Applicant to withdraw from the Resolution Plan. Already it has paid 10% of the upfront amount. Secondly, it has also given Bank Guarantee. The Plan was approved on 04.06.2019. Because of pendency of these Applications, there is a delay of payment of balance upfront amount. Having filed Resolution Plan which was considered by the CoC who approved the same and really there is no material concealment of any matter concerning the Corporate Debtor.
Application disposed off.
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2019 (8) TMI 1745
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - prove of delivery of the goods as per the invoices under dispute or not - HELD THAT:- The attempt of the CD in the case in hand, if taken as a whole, it is understood that the CD is attempting to prove inconsistent contentions. The CD miserably failed to prove both the contentions. In the above said background if I test the correctness of the reconciliation letter allegedly issued by the CD, there are no materials to hold that it is a manufactured document as alleged. If it was manufactured in a letterhead of the CD it invites criminal prosecution against the alleged maker. No complaint so far seen filed by the CD before any authorities to book them for fastening criminal liability. Such an attempt was not taken from the side of the CD even if the copy of the said letter was received by the CD before 7th April, 2018. The overall attempt on the side of the CD is to prove its case without supporting evidence.
The contention on the side of the CD that the reconciliation account is a fabricated one, cannot be upheld - It is a circumstance proving the case of the OC that the debt as claimed by the OC is payable by the CD.
The OC has succeeded in proving delivery of goods and CD has failed in proving per-existence of a dispute as alleged. Accordingly, the next question requires for consideration is whether the OC complied all the requirements to initiate the CIRP as against the CD. The application filed being found complete and that a certificate in compliance of Section 9(3)(c) and affidavit in compliance Section 9(3)(b) being produced and since no name of an Interim Resolution Professional is proposed in compliance of requirement to be met out as per Section 9(3)(e) the application is found complete. The dispute raised by the CD is found unsustainable under law. The operational debt as claimed by the OC is found payable by the CD.
Petition admitted - moratorium declared.
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2019 (8) TMI 1744
Permission to sell or alienate the movable properties with regard to 82 Red Entities to keep them as a going concern - HELD THAT:- We are not expressing any opinion with regard to Red Entities which are going concern. If any movable asset is required to be sold/ transferred, it will be open to the Board of Directors for taking permission of Hon’ble Justice Shri D.K. Jain, Former Judge of Supreme Court, as observed on 08.08.2019. We make it clear that the Interim Order passed on 08.08.2019 will not come in the way of Red Entities to pay salary of its Employees/ Workman, Officers and Operational creditors to keep the Red Entities going concern.
Application disposed off.
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2019 (8) TMI 1743
Settlement of claim of creditors - no Progress Report has been filed by Union of India/ILFS - HELD THAT:- Union of India/ILFS are allowed to file the Progress Report by tomorrow.
Before the next date of hearing, the Union of India must pass final order and settle the claim of all the creditors - The Union of India/ILFS are directed to file a fresh Progress Report by 3rd September, 2019.
Post these appeals ‘for orders on 5th September, 2019 at 3:00 PM on the top of the list.
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2019 (8) TMI 1742
Scheme for restructuring of the Corporate Debtor - seeking directions for convening the meeting of the Shareholders and Creditors - Section 230 of the Companies Act, 2013 - HELD THAT:- It is on record that the Scheme has been filed on 06.06.2019 and thereafter the amended Scheme was filed on 01.08.2019. The Promoter(s) has revised the proposal for the settlement and restructuring of the Company as provided in the Scheme.
Directions regarding holding, convening and dispensation of various meetings issued - directions regarding issuance of notices also issued.
The scheme is approved - application allowed.
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2019 (8) TMI 1741
Maintainability of appeal - low tax effect - HELD THAT:- Tax effect involved in the appeal under consideration is not more than 50 lacs, hence the instant appeal is liable to be dismissed as not maintainable, in view of the latest CBDT Circular No.17/2019, dated 08.08.2019 whereby the Revenue Department is precluded from filing the appeal(s) before appellate tribunal against the order (s) of CIT(A), in which the tax effect does not exceed ₹ 50,00,000/- as specified in the Circular and the CBDT Clarification dated 20th August 2019 whereby it is clarified that revised monetary limits so mentioned in the circular 17/2019 is applicable to all pending SLPS/Appeals/Cross Objections/References.
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2019 (8) TMI 1740
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - cheque dishonored - Financial Creditors - existence of debt and dispute or not - HELD THAT:- As the Corporate Debtor having admitted the debt and not able to clear the dues outstanding, the petitioner has proved existence of debt and default against the Corporate Debtor, therefore looking at the consent given by an Insolvency Professional, the petition is admitted.
Petition admitted - moratorium declared.
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2019 (8) TMI 1739
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:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code.
The Hon 'b Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum - In another latest judgment rendered in TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VERSUS EQUIPMENT CONDUCTORS AND CABLES LIMITED [2018 (10) TMI 1337 - SUPREME COURT], it is, inter alia held that existence of undisputed debt is sine qua non of initiating CIRP.
In the present case, the debt is "Operational Debt". It is vital to mention here that in either case of the Petitioner being categorized as a Home Buyer or an Investor it is clear that the amount disbursed by the Petitioner was against the consideration of the time value of money and did have a commercial effect of borrowing in the hands of the Corporate Debtor.
The Petition filed under Section 9 of I&B Code, 2016 is incomplete - petition dismissed.
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2019 (8) TMI 1738
Scheme of Arrangement - section 230-232 of Companies Act - HELD THAT:- Various directions regarding holding, convening of meetings issued - various directions regarding issuance of notices is issued.
The scheme is approved - application allowed.
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2019 (8) TMI 1737
Reduction of its share capital - Section 66 of the Companies Act, 2013 read with National Company Law Tribunal (Procedure for Reduction of Share Capital of the Company) Rules, 2016 - HELD THAT:- It is observed that while objections have not been received from Creditors, neither has any consent affidavits on their behalf been produced.
In Re Panruti lndustrial Co. Private Ltd, [1959 (9) TMI 59 - MADRAS HIGH COURT], it was held that the Court’s power to sanction any reduction is to be determined by whether such reduction is fair and equitable.
It is the bounden duty of the Tribunal to ensure that no injustice is meted out to any class of shareholders and even to creditors. Section 52 provides utilisation of security premium Account for premium payable on redemption of redeemable preference shares or of any debentures of the company or for the purchase of its own shares or other securities under section 68 of the Companies Act, 2013 - The present petition moreover, also involves selective reduction in equity share capital to a particular group involving non-promoter shareholders and bring the petitioner company as wholly owned subsidiary of its current holding company and also return excess of capital to them. This is an arrangement between the company and shareholders or a class of them and hence it is also not covered under Section 66.
The relief as sought in the instant Company Petition under Section 66 of the Companies Act, 2013 is not covered under this Section - the instant case may be covered under Sections 230232 of the Companies Act, 2013, wherein compromise or arrangement between the Company and its creditors or any class of them or between a Company and its members or any class of them is permissible - Petition dismissed.
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2019 (8) TMI 1736
Settlement agreement - as per the Terms of Settlement, the debtor had undertaken to make a payment of Rupees One Crore on or before 31.10.2019 - HELD THAT:- Considering that an amount of Rupees Thirty Lakhs as per the Deed of Settlement has been received by the Petitioner, this Bench is of the view that the Petition be disposed of as settled amongst the parties with the liberty that in case of any default matter be reported to this Bench.
This Petition is disposed of as settled with a liberty that in case of defiance on the part of the Respondent/debtor the matter can be reported to this Bench.
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2019 (8) TMI 1735
Deduction u/s. 54F - only objection that assessee has sold two commercial properties with two distinct sale deeds and made investment in one residential property to claim exemption u/s. 54 of the total capital gain received on sale of two commercial properties and it is not allowable because it is not permissible u/s. 54F - HELD THAT:- As decided in SMT. KG. RUKMINIAMMA [2010 (8) TMI 482 - KARNATAKA HIGH COURT] as referring the use of term ‘a’ in respect of both the properties i.e. the original property on whose sale long term capital gain has arisen and also to the new property in which investment has been made after such sale to claim such deduction u/s. 54/54F of the IT Act. Hon'ble Karnataka High Court has specifically held that with regard to the original property on sale of which the long term capital gain has arisen i.e. the original asset, the term used is a long term capital asset buildings or lands and being a residential house.
Based on this, this was the finding of Hon'ble Karnataka High Court in this para that the term ‘a residential house’ used in section 54 makes it clear that it is not to convey the meaning that it refers to a single residential house. Hence in our considered opinion, the issue in the present case is squarely covered in favour of the assessee and against the revenue by this judgment of Hon'ble Karnataka High Court and respectfully following the same, we hold that the authorities below were not justified in rejecting the claim of the assessee for deduction u/s. 54F on this basis that the assessee has sold two commercial properties and claimed deduction u/s. 54F.
There is no other objection of the authorities below regarding the assessee’s eligibility for deduction u/s. 54F of the IT Act. But still we feel it proper to restore back this matter to the file of AO to quantify and allow deduction u/s. 54F of the IT Act as per law. If it is found that the assessee has purchased a new eligible residential house property within prescribed time, then it should be held that the assessee is eligible for deduction u/s. 54F and deduction should be quantified and allowed as per law. - Appeal filed by the assessee is allowed for statistical purposes.
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2019 (8) TMI 1734
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:-This Tribunal perused all the relevant papers and found them to be in order. The Registered Office of Corporate Debtor is situated in Bhilwara and therefore this Tribunal has jurisdiction to entertain and try this Application. The matter is within the limitation period as enunciated under the Law of Limitation - It is apparent from the reply of the Respondent that the payment of claim amount has been defaulted by the Corporate Debtor to the Applicant.
The claim stands established and prima facie presumption raised that there is default in payment of the amount due to the Applicant and in view of the reply of the Respondent the debt is admitted by the Respondent - this Tribunal is inclined to initiate the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor as envisaged under the provisions of IBC, 2016.
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2019 (8) TMI 1733
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditor - existence of debt and dispute or not - Whether the Petition is barred under Section 11 of I&B Code? - HELD THAT:- A plain reading of the provision of section 11 makes it clear that the Code prohibits certain persons from making an Application under this code. It is the argument of the Corporate Debtor that since the Petitioner Company is undergoing CIRP the same is barred under Section 11 from making any application before this tribunal through its Resolution Professional - The intent of the legislature was to stop re-filing of Insolvency proceedings against the same corporate Debtor again and again. This is clearly now the case here. Therefore, this argument of the Corporate Debtor is rejected forthwith.
Since the resolution process has already elapsed and neither the CoC or the Resolution professional exist any longer, is this petition anymore maintainable? - HELD THAT:- As per section 35 (1) (d) r/w section 35 (1) (k) of the Code the Liquidator herein is completely authorised to represent the Petitioner company before this Tribunal. So, the argument of the Corporate Debtor doesn’t have any merit and is rejected.
Whether there is any ‘existence of dispute’ between the parties? - HELD THAT:- The Corporate Debtor had never even once raised a single shred of objection or dispute against the Petitioner in the past seven years about either quality of good or anything else. It was for the first time that the Corporate Debtor only after receiving a notice from the Petitioner started raising disputes - from prima facie it is clear that the ‘dispute’ raised by the Corporate Debtor is patently feeble and is an assertion which is not supported by any evidence. This defence of the Corporate Debtor also has no merit and is therefore rejected.
Thus, the Corporate Debtor defaulted in making the payment towards the liability to the Petitioner and the petition deserves to be admitted - application admitted - moratorium declared.
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2019 (8) TMI 1732
Bogus LTCG - Addition u/s 68 - HELD THAT:- Assessee has discharged its onus about the veracity of the transaction and the claim made on the sale consideration of shares of M/s. SESL as claimed u/s 10(38) - AO being influenced by the investigation report of the Investigation Wing of the Department has taken adverse view against the assessee without any direct evidence / material to suggest that the entire claim of assessee was bogus. - Decided in favour of assessee.
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2019 (8) TMI 1731
Seeking withdrawal of application - Appellant settled the matter on behalf of the Corporate Debtor with 1st Respondent and Financial Creditor prior to the constitution of the ‘Committee of Creditors’ - HELD THAT:- The Hon’ble Supreme Court in “Swiss Ribbons Pvt. Ltd. Vs. Union of India” [2019 (1) TMI 1508 - SUPREME COURT] held that the Directors or the shareholders of the ‘Corporate Debtor’ may settle before the constitution of the ‘Committee of Creditors’ and it was observed that in such case, it was open to the Adjudicating Authority to exercise its inherent jurisdiction under Rule 11 of the NCLT Rules, 2016.
Normally, before the constitution of ‘Committee of Creditors’ if on behalf of the ‘Corporate Debtor’ a shareholder or Director settles the claim of the Applicant who files an application u/s 7 or 9 of the ‘I&B’ Code, the Adjudicating Authority in normal course can exercise its inherent power under Rule 11 of the NCLT Rules, 2016 - However, it is seen that when allowing an application under Rule 11 of the NCLT Rules, 2016 may result into triggering a large number of cases as a number of creditors, including the ‘Financial Creditors’ (allottees) are also in the queue to trigger the process against the ‘Corporate Debtor’, it is open to the Adjudicating Authority to refuse to exercise its inherent power under Rule 11 of the NCLT Rules, 2016 otherwise it may result into triggering number of cases.
The Appellant or shareholders on behalf of the ‘Corporate Debtor’ allowed to move an application u/s 12A for settling the claim of all the Creditors particularly the allottees stating how they will take care of the allottees and other lenders and in such cases the ‘Committee of Creditors’ uninfluenced by the order passed by the Adjudicating Authority - appeal disposed off.
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2019 (8) TMI 1730
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - ledger statements showing TDS deducted, showing admission of liability - claim for damages would not mean a liquidated debt - Corporate Debtor has argued that in case of existence of a dispute between the parties or if there is a record of the pendency of the suit or arbitration proceedings, the insolvency application will have to be rejected.
HELD THAT:- Even when the dispute is brought to the notice of the Operational Creditor, all that is required to be seen is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence as held by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited. [2017 (9) TMI 1270 - SUPREME COURT], where it was held that the knowledge on the part of the Corporate Debtor that the Operational Creditor would certainly agitate his grievance against them by filing a fresh petition under section 9 of the Code. This knowledge on the part of the Corporate Debtor must be construed that there is ample opportunity to maliciously raise a dispute or since there is no Section 8 notice, they can conveniently file a frivolous suit against the Operational Creditor, with the hope that the bench of NCLT, Mumbai would not have any opportunity but to dismiss the Petition looking at the frivolous suit. This appears to be the mindset of the Corporate Debtor in filing the suit. If at all the claim made in the suit filed by the Corporate Debtor is genuine, they should have filed the same well before filing of the winding up petition filed by the Petitioner.
Petition allowed - decided in favor of petitioner.
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2019 (8) TMI 1729
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors failed to make repayment of its dues - time limitation - HELD THAT:- The Respondent has filed a reply stating that it is admitting the claim of ₹ 1,91,47,151/- made by the petitioner in its petition (Form-1) filed under Section 7 of IBC, 2016. The respondent further admits that the due to some Financial Crises, it was heavily indebted and it was hardly possible to afford and keep up with the financial obligations. In view of admission and the commitment made in the reply, the Corporate Insolvency Resolution Process can be initiated against the Corporate Debtor.
This Tribunal perused all the relevant papers and found them to be in order. The prosecution leading to the filing of the present petition has been detailed in the application prescribed under IBBI (Application to Adjudicating Authority) Rule, 2016. The matter is within the purview of Law of limitation - It is apparent from the reply of the Respondent that the payment of claim amount has been defaulted by the Corporate Debtor to the Financial Creditor.
The claim stands established and prima facie presumption raised that there is default in payment of the amount due to the Financial Creditor and in view of the reply of the Respondent the debt is admitted by the Respondent - this Tribunal is inclined to initiate the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor as envisaged under the provisions of IBC, 2016.
Petition admitted - moratorium declared.
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2019 (8) TMI 1728
Alternate remedy of statutory appeal available under the Act - Extra ordinary jurisdiction of this Court challenging the impugned order u/s 115Q read with 115O - HELD THAT:- Looking to the peculiar facts of the case, it is only for the Commissioner of Income Tax (Appeals) to decide his jurisdiction in accordance with law. Therefore it would be appropriate that the petitioner files an appeal to the Commissioner of Income Tax (Appeals) within a period of three weeks from today.
On petitioners’ filing an appeal, the Commissioner of Income Tax (Appeals) shall, within a further period of three weeks from the date of filing, decide the issue of maintainability of the appeal before him in the context of section 246A of the Act. In case the Commissioner of Income Tax (Appeals) holds that the appeal from the impugned order dated 14 March 2019 passed under section 115O of the Act is available and the appeal as filed is maintainable, then this petition will be withdrawn by the Petitioner. This as an effective alternate remedy is available.
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2019 (8) TMI 1727
Seeking disbursement of retiral benefits to the appellant - entitlement to Back wages - allegation of Misappropriation of funds and defalcation against the appellant/headmaster, during his tenure of service - submission of appellant in support of the appeal is that once the High Court found that the appellant had wrongfully been removed from service, the general principle that back-wages must follow a determination in regard to the illegality of termination should be applied - HELD THAT:- The High Court has held that the action of the Municipal Council in proceeding with a de novo inquiry was vitiated since no reasons were recorded by the Municipal Council. The High Court held that even if a de novo inquiry was permissible under the rules, no reason was furnished for discarding the report of the first inquiry officer and convening a fresh enquiry. Moreover, the appellant had objected to the appointment of Shri Sontakke as an inquiry officer since he was an ex-officer of the Municipal Council who was occupying quarters allotted to him at the material time. Hence, the High Court held that the removal was illegal. However, the High Court denied back-wages for the period between the date of dismissal and the date on which the appellant attained the age of superannuation. The appellant has been granted his retiral dues on the basis of continuity of service.
In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years - High Court was not justified in denying the back-wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid.
The ends of justice would be met by directing that the appellant be paid an amount quantified at ₹ 5 lakhs in full and final settlement of his claim for backwages for the period between the date of the order of removal and the date on which he attained the age of superannuation - appeal is accordingly disposed of.
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