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Showing 1 to 20 of 2170 Records
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2019 (4) TMI 2178
Money Laundering - validity of retention of seized properties under the Prevention of Money Laundering Act, 2002 (PMLA) when no prosecution complaint has been filed within the mandatory period - HELD THAT:- 90 days period has already been expired from the date of passing the impugned order. No prosecution complaint under Section 8(3)(a) of the Act, has been filed. The period is mandatory in nature. The retention order in the above said matter was passed on 04th April, 2018. More than one year has been passed. Counsel for the respondent has confirmed that no prosecution complaint has been filed by the respondent. Under these circumstances, retention lapses, the appeal is accordingly allowed.
The impugned order is set aside - Petition allowed.
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2019 (4) TMI 2177
Disallowance u/s 40A(3)(a) and u/s 40A(3)(b) - abnormal gross profit and net profit rate - assessee is engaged in the cloth business - HELD THAT:- As books of accounts were not rejected by the AO as required under section 145(3) of the Act. Thus, after disallowance under section 40A (3) of the Act, the profit of the assessee exceeded by more than 8%. It has been claimed the gross profit margin in the case of the assessee is 7% and turnover is below Rs. 40 Lakh. The assessee shown income of Rs.1,49,160/- whereas after disallowance it comes to Rs.35,22,360/- which giving absurd result as held in the case of CIT v. S Mohammad Dhurabudeen [2007 (7) TMI 635 - MADRAS HIGH COURT] categorically held that when disallowance under section 40A (3) is made, the overall income should not exceed probable percentage of profit. The ratio of this decision is directly applicable to the case of the assessee.
We are of the opinion that it would be interest of natural justice, judicial pronouncements discussed and cited above by the learned counsel for the assessee 0and considering the turnover is below Rs. 40 lakhs, the disallowance of all payments be restricted to 8% of total turnover. The AO is directed to recalculate the disallowance in respect of disallowance of Rs.18,27,989/- made under section 40A(3)(a) and disallowance of Rs.15,45,212/- under section 40A(3)(b) of the Act totaling to Rs.33,73,201/-. These grounds of appeal are therefore, partly allowed.
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2019 (4) TMI 2176
Legality of grant of patta in favour of the Appellants/Defendants - absence of any order of abandonment or revocation of the patta given to the forefathers of the Respondents-Plaintiff - rights of Appellants-Defendants over the suit properties - HELD THAT:- The first appellate court held that the ownership of Rameshwar and Ram Sahai was not terminated in a legal way and therefore, they are to be treated as owners of the suit properties. The first Appellate Court further held that since the ownership of Rameshwar and Ram Sahai was not terminated in a legal way, the lease deed-Ex. D-20 which has been produced on behalf of Defendant No. 1 cannot be treated to be a proved document and on those findings, set aside the finding of the trial court that Defendant No. 1 is having a legal right of ownership of the disputed lands. The first Appellate Court was not right in doubting the correctness of Ex. D-20 and not right in observing that Defendant No. 1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex. D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son-Hanuman Din and the Appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records.
In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence - the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the Plaintiffs-Respondents are to succeed only on the strength of their own title irrespective of whether the Defendants-Appellants have proved their case or not.
Conclusion - The High Court did not appreciate the patta (Ex. D-20) granted in favour of the forefathers of the Appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex. D-1-Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the Appellants-Defendants namely Gaya Din was given the patta (Ex. D-20) and since then, Gaya Din and Hanuman Din were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside.
The Suit No. 68-A/75 filed by the Respondents-Plaintiffs is dismissed and the judgment of the trial court shall stand restored.
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2019 (4) TMI 2175
Approval of Resolution Plan - Section 30(6) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) 2016 - HELD THAT:- An observation can be made in a situation when a Resolution Plan is approved by the majority voting as per the prescribed percentage by the Members of the CoC the same is required to be accepted/approved by the Adjudicating Authority.
Now this view is taken, because of the latest decision of the Hon'ble Supreme Court, wherein the scope of any suggestion or alteration in the impugned resolution plan is discussed and directions issued. As far as the procedure is concerned, in this case, the same has been followed as per the provisions of the Insolvency Code, therefore, the Resolution Plan has to be approved. The Resolution Applicant has submitted an affidavit as required U/s 30(1) of the Code stating that he is eligible U/s 29A of the Code.
The Resolution Plan is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect and the "Moratorium" imposed under section 14 shall cease to have any effect henceforth. The Resolution Professional shall submit the records collected during the commencement of the Proceedings to the Insolvency & Bankruptcy Board of India for their record and also return to the Resolution Applicant or New Promoters. Certified copy of this Order be issued on demand to the concerned parties, upon due compliance.
Conclusion - The Resolution Plan met the requirements of Section 30(2) of the IBC and adequately addressed the interests of all stakeholders, and thus stands approved.
Application disposed off.
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2019 (4) TMI 2174
Challege to order paased, by which cognizance has been taken for the offence under Section 457, 376 IPC against the petitioners and they have been summoned through nonbailable warrants - HELD THAT:- Having regard to the submissions made by the learned counsel for the petitioners and learned Public Prosecutor, the non- bailable warrants issued against the petitioners are converted as bailable warrants.
Petition disposed off.
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2019 (4) TMI 2173
Issuance of Recovery Certificate without Notice of Demand -petitioner urged that before issuing a certificate the Recovery Officer was required to issue a notice of demand u/s 220(1) of the Income tax Act - HELD THAT:- Legislature by inserting Section 28A to SEBI Act has provided that if a person fails to pay the amounts referred in Section 28A, then the Recovery Officer shall draw up a statement/certificate and proceed to recover the amounts specified in the certificate by any one or more of the five modes specified therein and for that purpose the provisions of Section 220 to 227, 228A, 229, 232, the Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 as in force from time to time, in so far as may be, would apply with necessary modifications as if the said provisions and the rules made thereunder were the provisions of SEBI Act and referred to the amount due to SEBI under the SEBI Act.
The order of the Tribunal holding that no separate notice is required to be issued under Section 28A read with 220 of Income Tax Act was affirmed by the Supreme Court in the appeal filed by Dushyant N. Dalal [2017 (4) TMI 1196 - SECURITIES APPELLATE TRIBUNAL MUMBAI]
Penalty imposed - Adjudicating Officer in its order while imposing penalty had also directed the appellant to pay the penalty amount within 45 days. In our view this order of penalty would also be deemed to include a notice of demand and thus a formal requirement for issuance of a separate notice of demand pursuant to the order of penalty is no longer required. Thus, the contention raised by the appellant is not sustainable and is rejected.
Calculation of interest on the penalty amount - The contention that interest was impliedly waived when the penalty was reduced by the Tribunal or that interest cannot be imposed with retrospective effect is patently misconceived.
Interest was not only chargeable u/s 28A read with Section 220(2) of the Income Tax Act but the provisions of Interest Act, 1978 could also be taken into consideration and interest could be charged from the date on which the penalty became due. Thus, Recovery Officer was justified in charging interest from the date of the order passed by the Adjudicating Officer.
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2019 (4) TMI 2172
Undisclosed profit on undisclosed sales of gold - Adopting the gross profit of suppressed sales as the income of the assessee, instead of the net profit on such suppressed sales - HELD THAT:- We direct the Assessing Officer to assess the income from undisclosed sales in question by applying the net profit rate in place of the “gross profit rate” as undisclosed sales. The net profit rate shall be that which the assessee had disclosed in its regular books of account for the said Assessment Year on recorded sales. In the result, this ground of the assessee is allowed in part.
Disallowance u/s 40A(3) of the Act and Section 40(a)(ia) made when profits have been estimated as a percentage of turnover - HELD THAT:- We delete the disallowance made u/s 40A(3) and 40(a)(ia) of the Act as in this case, as the income has been estimated by the Assessing Officer. Hence, we allow this ground of the assessee.
Taxation of excess stock found by the revenue during the course of survey - HELD THAT:- We direct the AO to tax only the gross profit embedded in the excess stock found for the Assessment Year. The balance addition is hereby deleted. In the result this ground of the assessee is allowed in part.
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2019 (4) TMI 2171
Financial Creditors or not - whether on the basis of Deed of Exchange, the Appellant can claim to be a 'Financial Creditor'? - HELD THAT:- An 'Operational Creditor', who has assigned or legally transferred any 'Operational Debt' to a 'Financial Creditor', the assignee or transferee shall be considered as an 'Operational Creditor' to the extent of such assignment or legal transfer.
In view of Section 3(37), the Appellant cannot derive any advantage of expressions used in Negotiable Instruments Act, 1881.
From the record also, it is found that the 'Bill of Exchange' relates to supply of goods and whatever finance given by the appellant is to 'Aavanti Industries Pte Ltd., Singapore' and not to the 'Corporate Debtor'. The Corporate Debtor has merely received the goods and therefore we hold that the Appellant is not a 'Financial Creditor' but at best can claim to be an 'Operational Creditor' as held by the Adjudicating Authority.
Conclusion - The appellant is an 'Operational Creditor' and not entitled to be classified as a 'Financial Creditor' in the Corporate Insolvency Resolution Process.
There is no merit in the appeal - appeal dismissed.
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2019 (4) TMI 2170
Addition u/s 68 - unexplained cash credit, following an increase in share capital due to a scheme of amalgamation approved by Hon'ble Calcutta high court - HELD THAT:- No share were issued during the year either by the assessee company or the companies amalgamated with it. The increase in share premium was nothing but the addition of share premium account of the amalgamating companies with the corresponding figure of the assessee company, therefore, there is no cash involved in this transaction, hence provisions of section 68 does not apply.
We note that CIT(A) erred in confirming the addition made U/s. 68 particularly when the initial onus were duly discharged by the assessee stating that it is only an adjustment entry during the amalgamation scheme.
Therefore, hold that the ld. AO had erroneously invoked the provisions of section 68 of the Act to the facts of the instant case, which, in our considered opinion, are not at all applicable herein. This is a simple case of acquiring shares during amalgamation scheme, that is, the increase in share capital is only due to scheme of amalgamation approved by Hon'ble Calcutta high court, hence, addition under section 68 should not be made. Appeal filed by the Assessee is allowed.
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2019 (4) TMI 2169
Application of judicial mind while taking cognizance of the offence under section 381 IPC - State contends that prima facie offence is made out against the applicant and all submissions raised by applicant fall under the arena of disputed facts which cannot be decided under the proceeding of section 482 Cr.P.C - HELD THAT:- Hon'ble Supreme Court in the matter of Fakhruddin Ahmad Vs State of Uttranchal and another [2008 (9) TMI 997 - SUPREME COURT], discussed the expression “taking cognizance of an offence” by a Magistrate within contemplation of section 190 of the Cr.P.C and also discussed what must have been taken notice by the Magistrate while taking cognizance.
Whether the Chief Judicial Magistrate has applied his mind before taking cognizance of the offence under section 381 Cr.P.C.? - HELD THAT:- From a perusal of the above order it is evident that it is a typed proforma where only information of case no, name of accused, section, Police Station, date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. [2009 (10) TMI 975 - ALLAHABAD HIGH COURT]. Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore, in the present case, cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused.
Whether on the basis of materials available ingredients of section 381 IPC is prima facie disclosed? - HELD THAT:- Considering the materials available, there is no material to show that accused was employed in the caspacity of servant or clerk with the Opp Party no 2/complainant. Secondly, the machine was not in possession of the Opp Party no2. Therefore, the alleged theft is not from the possession of the Opp party no 2. Therefore, in the present case essential ingredients of section 381 IPC are absent. In this background it is difficult to arrive at a conclusion that in the present matter even prima facie case is made out against the applicant under section 381 IPC.
Whether in the facts and circumstances of the present case, the Court could quash the charge sheet under its inherent power under section 482 Cr.P.C.? - HELD THAT:- There is no doubt that this Court could exercise its inherent jurisdiction under section 482 Cr.P.C (I) to make such orders as may be necessary to give effect to any order under the code of criminal Procedure or (ii) to prevent abuse of the process of any court or (iii) otherwise to secure ends of justice - In the present case, neither the concerned Magistrate has applied mind before taking cognizance of offence and rather passed an order in the form of proforma order, nor on the basis of materials available, even prima facie ingredients of section 381 IPC are disclosed.
Conclusion - The charge sheet and the cognizance/summoning order quashed, concluding that the proceedings were an abuse of the court's process and that the essential ingredients of section 381 IPC were not met.
While exercising such power, the impugned charge sheet is quashed and the present application is allowed.
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2019 (4) TMI 2168
Admissibility of section 9 application - initiation of CIRP against the Corporate Debtor - existence of default in payment by the Corporate Debtor or not - HELD THAT:- The material documents filed by the petitioner clearly established that the Respondent failed to pay outstanding of Rs.15,46,34,976.18/- respect of payment for supply of goods (i.e. steel and allied products) from the supplier, i.e. Petitioner to the Respondent. The Respondent has also admitted its liability towards the Petitioner. The Petition is filed strictly in accordance with law and also suggested a qualified Resolution professional namely Mr. Shivadutt Bannanje with Registration No. IBBI/IPA-002/IP-N00266/2017-18/10779 to appoint as IRP. Therefore, the said RP is provisionally qualified to be appointed as IRP. Hence, this is a fit case to admit by initiating CIRP respect of Corporate Debtor with other consequential orders.
Conclusion - The material documents filed by the petitioner clearly established that the Respondent failed to pay outstanding amount in respect of payment for supply of goods.
Petition admitted - CIRP initiated - IRP was appointed - moratorium declared.
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2019 (4) TMI 2167
Maintainability of appeal - Anti-competitive practices - abuse of dominant position - bid-rigging - contravention of Section 3(3) r/w Section 3(1) of the Competition Act, 2002 - Whether the Commission was justified in overturning the finding of DG in regard to alleged contravention of Section 3 of the Act? - Price fixation.
Maintainability of appeal - HELD THAT:- Since the Commission found some deficiencies in investigation, it directed the DG to examine all relevant issues including the deficiencies pointed out by the Commission. Further investigation was carried out by DG culminating in filing of supplementary investigation report, wherein, DG reiterated its earlier conclusions and observed that KCDA had no role in appointing or terminating the dealers, which was the sole prerogative of cement manufacturers. It also found that KCDA had no role in regard to supply of cement by the cement manufacturers to dealers, which purely depended on market considerations. The supplementary investigation report thus further reinforced conclusions arrived at in the main investigation report - the Commission closed the matter largely agreeing with the recommendation of DG though disagreeing with its finding regarding contravention of Section 3 noticed hereinabove passing the order within the ambit of Section 26(6) of the Act which is appealable in terms of Section 53-B r/w Section 53-A clause (a) of the Act. Objection raised by the Commission in regard to maintainability of appeal being devoid of merit is accordingly overruled.
Whether the Commission was justified in overturning the finding of DG in regard to alleged contravention of Section 3 of the Act? - HELD THAT:- Clause 05 of Annexure A11 provides that any new appointment of stockists/dealers shall be as per understanding with KCDA. Normally, grant of dealership or appointment of stockists should rest exclusively with the cement manufacturing company. Merely because the cement manufacturer has an understanding with the Cement Dealers Association in regard to grant of dealership or appointment of stockists does not imply that a role is assigned to KCDA in appointment of stockists/dealers - The allegations emanating from the Appellants /Informants in regard to termination of dealership and stoppage of supplies to dealers have been inquired into by the Commission and on the basis of available evidence it has been found to be attributable to reasons peculiar to the dealer/ stockists. CCI appears to have considered these documents to arrive at a finding that there was no meeting of minds between KCDA and the cement manufacturers in regard to grant or termination of dealership. No fault can be found with the conclusions drawn by the Commission on consideration of the available material, moreso as the investigation found that there were several cement dealers in Kerala who were not members of KCDA - in arriving at the conclusion that no case of contravention of Section 3(3) r/w Section 3(1) of the Act was made out was largely influenced by the fact that the investigation reports consistently concluded that there was no material to attribute any role to KCDA in award or termination of dealership.
Price fixation - HELD THAT:- An isolated instance of merely two manufacturers out of a large number of manufacturers of a product withdrawing post sale discounts would not necessarily be a proof of an anti- competitive agreement, moreso, as the rationale behind the same as noticed above has been explained. While it is true that the aforestated exhortation on the part of KCDA jointly with the two odd cement manufacturers to dealers would impinge on the fair concept of competition, the same would not fall within the mischief of Section 3(3) r/w Section 3(1) of the Competition Act.
Conclusion - The anti-competitive agreements require clear evidence of a meeting of minds and that exhortations or suggestions without a direct impact on competition do not constitute a violation of Section 3.
The impugned order does not suffer from any legal infirmity and the conclusions drawn on evaluation of material are not erroneous - Appeal dismissed.
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2019 (4) TMI 2166
Non prosecution of appeal by assessee - HELD THAT:- During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. Earlier this case was fixed for hearing on 30.10.2018 but nobody was present on behalf of the assessee and the case was adjourned sine die. Later on, the case was fixed for today i.e. 30.04.2019. The notice of hearing was sent to the assessee at the address mentioned in Form No. 36/CIT(A)’s order which has not yet been returned back by the Postal Authority. It therefore, appears that the assessee is not interested to prosecute the matter.
The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum, “VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT’. Considering the facts and keeping in view the provisions of rule 19(2) of the Income-tax Appellate Tribunal Rules as were considered in the case of CIT vs. Multiplan India Ltd., [1991 (5) TMI 120 - ITAT DELHI-D] we treat this appeal as unadmitted.
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2019 (4) TMI 2165
Taxable service for levy of service tax - service tax under reverse charge mechanism in terms of Notification No. 30/2012-ST dated 20.06.2012 - remuneration paid to the whole time directors, who render services in the course of or in relation to their employment - HELD THAT:- The term “service” has been defined under Section 65B (44) of the Finance Act, 1994 to mean any activity carried out by a person for consideration, and includes a declared service. Certain services were excluded from the purview of such statutory provisions, which shall not be considered as taxable service for the purpose of levy and payment of service tax.
On perusal of the case records, we find that the whole time directors were appointed by the appellant on payment of salary as remuneration and for that purpose, the appellant as the employer has issued Form No. 16 to the whole time directors, by deducting the tax at source.
The income tax returns filed by the whole time directors also reflected the salary income earned from the employer.
The appellant company has filed Form No. 32 before the Registrar of company, furnishing the particulars of the whole time directors. It is evident from the available records that the relationship exist between the appellant and its whole time directors is that of employer and employee and as per the exclusion clause provided in the definition of ‘service’, the activities undertaken by the whole time directors should not fall under the ambit or scope of taxable service for the purpose of payment of service tax.
This Tribunal in the case of M/s Allied Blenders and Distillers Pvt. [2019 (1) TMI 433 - CESTAT MUMBAI] has allowed the appeal, holding that when the remuneration is paid to the Directors as salary for performing the day-to-day activities, there is no involvement of any taxable service for levy of service tax.
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2019 (4) TMI 2164
Validity of reopening of assessment - AO Ludhiana jurisdiction to issue notice or not? - addition of unexplained share capital u/s 68 - HELD THAT:- The issue of notice u/s 148 is a pre-requisite for completion of assessment under section 147. As per Section 148 the AO means the AO vested with jurisdiction over the assessee as stipulated under section 120 sub section 1 & 2. Thus, the notice u/s 148 is required to be issued by the AO who is vested with the jurisdiction over the assessee on the basis of the criteria of territorial or class of persons mentioned in sub section 3 of Section 120 of the Income Tax Act, 1961.
This is not the case of Revenue where the AO who issued the notice under section 148 was vested with the jurisdiction by the virtue of any order or direction issued under Sub Section 1 or 2 of the Section 120. Since the notice has been issued by ACIT, Circle 7 instead of ACIT, Circle-5, who is not vested with the jurisdiction, the notice issued under section 148 is treated as void ab initio and liable to be set aside. Consequently the reassessment made on such notice is not sustainable. Decided against revenue.
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2019 (4) TMI 2163
Disallowance of deduction u/s 80IA (4) - assessee undertaken road development project, as entered into an agreement with Gujarat State Road Development Corporation which was incorporated by the Government for the special purpose - Assessee contended that the GSRDC was performing all the functions of the State Government and therefore the concession agreement executed by GSRDC should be treated to have been entered into by the State Government -
As decided by HC [2018 (5) TMI 1174 - GUJARAT HIGH COURT] Significant factors in the present case are that the road widening project was cleared by the Government, land for such purpose was alloted by the Government. The concession agreement which GSRDC executed was approved by the Government. It was under the Government Resolution that the assessee would collect toll upon completion of such project. Upon the completion of the project period, the entire infrastructure so developed would vest in the Government. Signatory to the applicant may be GSRDC for all practical purposes and in essence, it was the agreement between the assessee and the State Government.
Rigid interpretation of this provision as canvassed by the Revenue would only result into the assessees involved in genuine infrastructure development projects for and on behalf of the Government or local authorities would be denied the deduction merely on the ground that the State Government had created a nodal agency for working out the finer details and nittygritty of such infrastructure development.
HELD THAT:- Delay condoned. We see no reason to interfere in the matter. The special leave petition is dismissed.
Pending applications, if any, shall also stand disposed of.
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2019 (4) TMI 2162
Validity of reopening of assessment u/s 147 - Reasons to believe - non independent application of mind - as argued no independent application of mind by AO and AO had merely relied upon report of the Investigation Wing of the department - HELD THAT:- AO at the time of issuance of notice under section 148 had only considered the report of the investigation. It is incumbent upon the assessing officer to apply independently mind and examine the information came to him from the investigation Wing and after examining the correctness and reliability of the information independently the assessing officer was required to issue the noticed under section 148 to the assessee. In the present case needful was not done.
Therefore we have no other option but to hold that the notice issued under section 148 was not in accordance and law and hence proceeding based on this satisfaction are required to set aside. We also find that the verbatim of the satisfaction written in the case of Sarthak Securities Co. Pvt. Ltd. [2010 (10) TMI 92 - DELHI HIGH COURT], and in the case of the assessee are similar and de void of any iota of “satisfaction” derived by the Assessing Officer. Assessee appeal allowed.
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2019 (4) TMI 2161
Dishonour of Cheque - insufficient funds - challenge to judgment of acquittal, recorded by the learned trial Court - rebuttal of statutory presumption - HELD THAT:- The evidence adduced, by the accused, making palpable echoing(s), qua the purported existing or legally enforceable liabilities, rather being indemnified or liquidated, thereupon this Court, proceeding to render the subsequent thereto, and it hence concluding qua rather adequate rebuttal evidence, in dis-proof, of, the statutory presumption, hence being adduced. However, extantly, the complainant apart from meteing, the afore suggestion, to the complainant while holding him, to cross-examination, and, with this Court, in the afore discussion, dwindling the force of the afore suggestion, meted to the complainant, during, his cross-examination, and, it concluding qua, the statutory presumption, striven to hence therethrough, being belittled, rather suffering futility.
This Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner and the analysis of the learned trial Court hence suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record.
The impugned judgment is quashed and set aside - Appeal allowed.
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2019 (4) TMI 2160
Validity of arbitral award - resolution of disputes by way of arbitration - Breach of Contract - non usage of road - Payment of interest from the date of submission of the claims to the sole arbitrator till the date of actual payment - HELD THAT:- AT on a thorough analysis of documentary evidence before it and on the basis of oral hearings, had come to the conclusion that main responsibility of contractor was supervision of construction work to ensure that work is executed as per approved design, desired quality and within the stipulated time, besides bill certification, contract management and reporting. AT has also observed that from the duties and responsibilities assigned to contractor, it comes to light that role of the contractor was more or less same as that of a Project Management Consultant (PMC) . Thereafter, AT had returned a finding that RSP had no serious complaint with regard to these duties and complaint of RSP was primarily pivoted on the plank that contractor had not reviewed the design to the entire satisfaction of RSP, i.e., for successful completion of the project.
This Court has also reminded itself of Hodgkinson principle. Hodgkinson principle has been explained by Hon'ble Supreme Court in the oft-quoted and celebrated Associate Builders case being Associate Builders Vs. Delhi Development Authority [2014 (11) TMI 1114 - SUPREME COURT]. Hodgkinson principle in simple term means that AT is the best judge with regard to quality and quantity of evidence before it. This coupled with Vedanta principle if put in the form of a theorem would translate into 'as long as interpretation of covenant in a contract by AT is a possible view and as long as it is based on reasonable construction, the Court will not interfere under section 34'. In this view of the matter, this court is unable to persuade itself to believe that there is infarction of sub section (3) of section 28. To put it differently, this Court is unable to persuade itself to hold that AT has not decided in accordance with the terms of contract.
This court has no hesitation in holding that the instant O.P is liable to be dismissed.
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2019 (4) TMI 2159
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and default or not - HELD THAT:- The material documents filed by the petitioner clearly established that the Respondent failed to pay outstanding of Rs.25,13,97,045/-. The Respondent has also admitted its liability towards the Petitioner. The Petition is filed strictly in accordance with law and also suggested a qualified Resolution professional namely Mr. Ravindranath Narayana Rao is named as IRP, to appoint as IRP. Therefore, the said RP is provisionally qualified to be appointed as IRP. Hence, it is fit case to admit by initiating CIRP respect of Corporate Debtor with other consequential orders.
Petition is hereby admitted by initiating Corporate Insolvency Resolution Process (CIRP) in respect of M/s. ILC Industries Limited, Corporate Debtor.
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