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Showing 1 to 20 of 1713 Records
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2020 (2) TMI 1714 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD BENCH
Rejection of the claim made before the Resolution Professional - rejection solely on the ground of delay - Sufficient reason given for delay or not - HELD THAT:- This adjudicating Authority is of the view that it is a settled law that the claim cannot be rejected by RP solely on the ground of delay by the applicants in filing their claim Moreover, sufficient reason has been shown for delay occurred in filing claim by the applicants before RP and the RP can be directed to accept the claim of the applicants to be considered by it on its merits and subject to proper verification, which will only be in consonance with the purpose sought to be achieved by the IBC.
The RP is further directed to accept the claim of the applicant and is at liberty to verify and determine based on material produced before it and to act accordingly.
Application allowed.
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2020 (2) TMI 1713 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Stay on Impugned order - HELD THAT:- It is accepted that now the Impugned Order has been passed. However, as the Impugned Order we are staying till next date and as we are yet to take a decision on the Appeal, in fairness, the Interim Order dated 22nd August, 2019 should be allowed to continue till the next date.
The Respondents, who are not present, may be served and will file Reply by next date. The Respondents 1 and 7 to 9 present also should file Reply by next date.
List the Appeal ‘for admission (after Notice)’ on 20th March, 2020 at 2.00 P.M.
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2020 (2) TMI 1712 - ITAT KOLKATA
Ingenuine Loss in client code modification in F&O account - whether there is no indication in the lower authorities’ orders as to whether that the assessee’s demat account in any way involved such a client code modification or not? - HELD THAT:- As decided in Kundan Investment Ltd. [2003 (3) TMI 62 - CALCUTTA HIGH COURT] all the shares related to the reputed companies and were quoted shares in the stock exchanges and were purchased and sold at the prevalent quoted market rates, which was verified from the statement of the slack exchanges. On these basis, the Tribunal found that the CIT(A) had proceeded on the basis of suspicion that there might be some ingenuinity in the transactions.
On the basis of the materials produced, the Tribunal came to a finding of fact, which does not seem to be perverse. Whether the shares could be sold immediately on the date of purchase or not was a question of business expedience. Whether the decision was correct or wrong cannot the question, which can be a subject-matter of decision in such a case. In order to find out whether the transaction is genuine or in genuine it is neither the expedience nor correctness of the decision nor the business expertise of the person to be considered. It is to be considered on the basis of the materials that there was no such transaction and that these share transactions were paper transactions. The suffering of loss could not be a factor for such purpose. Having regard to the facts and circumstances of the case, the view taken by the Tribunal allowing share loss cannot be said to be erroneous or perverse.
Thus we direct the Assessing Officer to delete the addition in question - Decided in favour of assessee.
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2020 (2) TMI 1711 - CESTAT AHMEDABAD
Taxability - various payment of Foreign Currency made to related parties in abroad - HELD THAT:- The appellants claim is that all the payment made to the foreign related parties are not towards the service, therefore, the same is not taxable, however in support of this claim the appellant have not submitted any documents before the adjudicating authority. Now the appellant is in position to submit all the documents in support of their defense.
The impugned order is set aside and appeal is allowed by way of remand to the adjudicating authority for passing afresh order.
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2020 (2) TMI 1710 - PATNA HIGH COURT
Seeking grant of Bail - recovery of prohibited arms from the house of this petitioner - HELD THAT:- Considering the nature of allegations levelled, the materials available on record and the submissions advanced on behalf of the parties, this Court does not find it to be a fit case for grant of bail to the petitioner. The same is, therefore, rejected.
Petition dismissed.
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2020 (2) TMI 1709 - CHHATTISGARH HIGH COURT
Seeking direction to the respondents to forthwith release the amount in respect of the tax paid by the petitioner under the GST law along with interest @ 18 percent - contention of the petitioner is that he has been repeatedly approaching the authorities concerned by raising his claim but till date his claim has not been responded to by the respondents - HELD THAT:- Considering the facts and circumstances of the case, particularly taking into consideration two circulars referred to by the petitioner to support his claim i.e. circular dated 10.10.2018 and 21.12.2017 and further considering the fact that the claim raised by the petitioner till date has not been denied or disputed by the respondents by passing any order or rejecting the claim of the petitioner, the stage has not arisen for the petitioner to invoke the arbitration clause. The petitioner may avail the same, provided the respondents may dispute the claim of the petitioner or reject his claim.
Given the said facts and the pending representation of the petitioner before the respondents, let the respondents No.2 to 5 take a decision on the claim/representation that the petitioner has made so far as his claim for refund of GST is concerned at the earliest preferably within a period of 60 days from the date of receipt of copy of this order - petition disposed off.
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2020 (2) TMI 1708 - ITAT BANGALORE
TP Adjustment towards Stand by Letter of credit - adjustments towards commission for utilization of non-fund based limits of the assessee by Associated Enterprises (AEs) and the Bank has issued SBLC and charged commission - AR contented that there is no requirement of ALP adjustment as the AE is permitted to utilize its non-fund based limits, which is in the nature of shareholders operations and on commercial expediency - HELD THAT:- As vehemently submitted that, there is no necessity of Transfer Pricing adjustment on SLBC because of commercial expediency, But could not controvert the observations and findings of the CIT(Appeals) with cogent evidence. Accordingly, we are not inclined to interfere with the order of CIT (A) on this disputed issue and confirm the same and dismiss the ground of appeal of the assessee.
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2020 (2) TMI 1707 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of petition - Operational Creditors - termination of MoU before service of notice u/s 8 of IBC - existence of dispute or not - HELD THAT:- It is not possible for the Adjudicating Authority to go into the questions whether the Respondent could or could not have unilaterally withdraw from the MoU and Indemnity Bond given; whether when the understanding has been reduced into writing, evidence other than what is stated in the document could or could not be admissible.
There was a pre-existing contested dispute and the Adjudicating Authority rightly held that it could not quantify the liability, which would be matter of trial. Appellant calculated dues keeping in view MoU contents of which Respondent disputed before Notice under Section 8 of IBC was sent.
There are no reason to interfere with the impugned order. There is no substance in the Appeal. The Appeal is dismissed.
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2020 (2) TMI 1706 - PUNJAB AND HARYANA HIGH COURT
Dishonour of Cheque - main reason for dismissal of the complaint was that the complainant is a money lender and the alleged advance stated to have been made by him to the accused could not be considered to be out of the purview of the money lending business of the complainant - HELD THAT:- In SAMARENDRA NATH DAS VERSUS SUPRIYO MAITRA [2005 (12) TMI 607 - CALCUTTA HIGH COURT], a Single Bench of Calcutta High Court had observed that when in a complaint under Sections 138 and 139 of the Negotiable Instruments Act, 1881, an application for discharge of accused was moved for alleged violation of provisions of 138 of the Act, therein it was observed that the alleged violation of provisions of Income Tax Act and Contract Act and Money Lenders Act does not bar continuation of proceedings under Section 138 of the said Act.
In V. SATYANARAYANA VERSUS SANDEEP ENTERPRISES [2004 (9) TMI 675 - KARNATAKA HIGH COURT] by a Division Bench of Karnataka High Court while dealing with interpretation of money lender, it was observed that money lending must be carrying on as profession and if the money lending was not with profit motive or not carried on as profession, he or she does not become a money lender; a stray instance of lending money does not show carrying on the business of money lending as profession or with profit motive.
The trial Court had dismissed the complaint mainly for the reason that the complainant was a money lender, lending money without licence. The Magistrate had not gone into the merits of the case as to whether the necessary ingredients of Section 138 of the Act were established or not. Therefore, the impugned judgment dismissing the complaint for the reason of complainant having been found to be a professional money lender practicing money lending without licence is not sustainable, in view of the judgments referred to learned counsel for the appellant/complainant.
The judgment is accordingly set aside by way of acceptance of the appeal and the matter is remanded to learned Magistrate for giving a fresh decision on merits after hearing learned counsel for the parties.
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2020 (2) TMI 1705 - SUPREME COURT
Interpretation of statute - provisions inserted by way of carving out Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
As per Arun Mishra, J.
HELD THAT:- The Section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath [2018 (3) TMI 2005 - SUPREME COURT], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of Accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in Section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.
Concerning the applicability of provisions of Section 438 Code of Criminal Procedure, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A(i) shall not apply - The court can, in exceptional cases, exercise power Under Section 482 Code of Criminal Procedure for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
The challenge to the provisions has been rendered academic - Petition disposed off.
As per S. Ravindra Bhat, J.
HELD THAT:- It is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes. Significantly, the amendment of 2016, in the expanded definition of 'atrocity', also lists pernicious practices (Under Section 3) including forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such scheduled caste communities are subjected to. All these considerations far outweigh the Petitioners' concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those Accused of committing offences under the Act; they remain unchanged by the enactment of the amendment.
As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.
It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva referred to in the Preamble, and statutes like the Act, have been framed.
Petition disposed off.
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2020 (2) TMI 1704 - ITAT MUMBAI
Determination of payment of trademark royalty of Cadbury Schweppes Overseas Limited [CSOL] - TP adjustment on account of payment of trademark royalty to CSOL - HELD THAT:- It is clear from the above decision of the Tribunal [2018 (11) TMI 1762 - ITAT MUMBAI] that the royalty payment of trademark used held within arm’s length and does not call for any adjustment. There being no difference in the factual position in the impugned assessment year, therefore, respectfully following the order of the Tribunal on identical facts in assessee’s own case we hold that royalty payment on trademark to CSOL, 1% of net sale is at arm’s length, hence, no further adjustment is required. The ld DR has fairly conceded that the issue is covered by the decision of the Tribunal in assessee’s own case. Appeal of the assessee is allowed.
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2020 (2) TMI 1703 - ITAT BENGALURU
Disallowance u/s 14A - assessee has suo motu disallowed amount - HELD THAT:- As disallowance of expenditure in terms of Section 14A r.w. Rule 8D cannot exceed the exempt income itself. No additional disallowance is called for under sec. 14A of the Act in excess of exempt income. The disallowance is thus required to be restricted to the extent of exempt income. See CORRTECH ENERGY PVT. LTD. [2014 (3) TMI 856 - GUJARAT HIGH COURT], M/S CHETTINAD LOGISTICS PVT. LTD. [2018 (7) TMI 567 - SC ORDER]
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2020 (2) TMI 1702 - BOMBAY HIGH COURT
Dishonour of cheque - Legally unenforceable debt - Insufficiently Stamped Instrument - Recovery of the sums advanced by the plaintiff to the defendants on the basis of written contracts, negotiable instrument and documents evidencing acknowledgment of liability - HELD THAT:- In the backdrop of the material on record, including the SFIO Report, the extent to which the plaintiff would be entitled in law to enforce the liabilities, especially as regards the quantum of interest, when the creditworthiness of the debtor was in a serious doubt, warrants consideration.
Whether the infraction on the part of the plaintiff is totally immaterial or inconsequential and the plaintiff is entitled to recover the entire loan amount alongwith interest as if the transaction is in conformity with all the norms? Can the plaintiff be permitted to recover the loan amount along with interest at the agreed rate at 16% p.a., with additional interest, penal interest, delayed payment interest at 2% p.a., each, de hors the circumstances in which the transactions were entered into? These are the questions, which warrant adjudication. The defence of alleged in-action on the part of the plaintiff in not invoking the shares at a specified time, despite agreeing to do so, resulting in loss to the defendants also raises an issue which requires consideration.
It would be appropriate to direct the defendants to deposit the amount which was actually disbursed to the 'borrower company' in each of the suits. Hence, the defendants are entitled to conditional leave to defend the suit; subject to deposit of the principal amount which came to be disbursed in each of the transactions.
Leave to defend the suit is granted to defendant nos. 1 to 8 subject to deposit of a sum of Rs. 2,33,16,04,691/- in the Court within eight weeks from today - Summon disposed off.
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2020 (2) TMI 1701 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI
Arbitration proceedings - initiation of arbitration proceedings against the Corporate Debtor, which was hit by moratorium when CIRP started - Corporate Debtor undergoing liquidation proceedings - Section 35(k) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The duty cast on the Liquidator is to institute or defend any Suit, prosecution or other legal proceedings. The same would include conscious decision which a Liquidator may take whether or not in the given set of facts, he needs to defend the proceeding. If the Liquidator has taken the decision, for reasons stated, we do not think that the Appellant has any right to force the Liquidator to come and defend and surrender to the action which the Appellant claims to have initiated.
There are no reason to interfere with the Impugned Order. The Appeal has no substance. The Appeal is dismissed at the stage of admission.
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2020 (2) TMI 1700 - SUPREME COURT
Preferential transaction or not - scope of Sub-section (2) of Section 43 IBC - related party and look-back period - transactions in question are hit by Section 43 IBC or not - lenders of JAL could be treated as financial creditors of JIL or not - Financial debt-ratio of Pioneer Urban.
Whether the transactions in question are hit by Section 43 IBC? - HELD THAT:- The transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code in relation to the transactions concerning Property Nos. 1 to 6. NCLAT, had not been right in interfering with the well-considered and justified order passed by NCLT in this regard.
Looking to the legal fictions created by Section 43 and looking to the duties and responsibilities per Section 25, for the purpose of application of Section 43 of the Code in any insolvency resolution process, what a resolution professional is ordinarily required to do could be illustrated as follows:
1. In the first place, the resolution professional shall have to take two major but distinct steps. One shall be of sifting through the entire cargo of transactions relating to the property or an interest thereof of the corporate debtor backwards from the date of commencement of insolvency and up to the preceding two years. The other distinct step shall be of identifying the persons involved in such transactions and of putting them in two categories; one being of the persons who fall within the definition of 'related party' in terms of Section 5(24) of the Code and another of the remaining persons.
2. In the next step, the resolution professional ought to identify as to in which of the said transactions of preceding two years, the beneficiary is a related party of the corporate debtor and in which the beneficiary is not a related party. It would lead to bifurcation of the identified transactions into two sub-sets: One concerning related party/parties and other concerning unrelated party/parties with each sub-set requiring different analysis. The sub-set concerning unrelated party/parties shall further be trimmed to include only the transactions of preceding one year from the date of commencement of insolvency.
3. Having thus obtained two sub-sets of transactions to scan, the steps thereafter would be to examine every transaction in each of these sub-sets to find: (i) as to whether the transaction is of transfer of property or an interest thereof of the corporate debtor; and (ii) as to whether the beneficiary involved in the transaction stands in the capacity of creditor or surety or guarantor qua the corporate debtor. These steps shall lead to shortlisting of such transactions which carry the potential of being preferential.
4. In the next step, the said shortlisted transactions would be scrutinised to find if the transfer in question is made for or on account of an antecedent financial debt or operational debt or other liability owed by the corporate debtor. The transactions which are so found would be answering to Clause (a) of Sub-section (2) of Section 43.
5. In yet further step, such of the scanned and scrutinised transactions that are found covered by Clause (a) of Sub-section (2) of Section 43 shall have to be examined on another touchstone as to whether the transfer in question has the effect of putting such creditor or surety or guarantor in a beneficial position than it would have been in the event of distribution of assets per Section 53 of the Code. If answer to this question is in the affirmative, the transaction under examination shall be deemed to be of preference within a relevant time, provided it does not fall within the exclusion provided by Sub-section (3) of Section 43.
6. In the next and equally necessary step, the transaction which otherwise is to be of deemed preference, will have to pass through another filtration to find if it does not answer to either of the Clauses (a) and (b) of Sub-section (3) of Section 43.
7. After the resolution professional has carried out the aforesaid volumetric as also gravimetric analysis of the transactions on the defined coordinates, he shall be required to apply to the Adjudicating Authority for necessary order/s in relation to the transaction/s that had passed through all the positive tests of Sub-section (4) and Sub-section (2) as also negative test of Sub-section (3).
Looking to the legal fictions created by Section 43 and looking to the duties and responsibilities of the resolution professional and the Adjudicating Authority, ordinarily an adherence to the process illustrated hereinabove shall ensure reasonable clarity and less confusion; and would aid in optimum utilization of time in any insolvency resolution process.
Whether lenders of JAL could be treated as financial creditors? - HELD THAT:- Such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any 'financial debt' within the meaning of Section 5 of the Code; and hence, such lenders of JAL do not fall in the category of the 'financial creditors' of the corporate debtor JIL.
These appeals are allowed to the extent and in the manner that:
1) The impugned order dated 01.08.2019 as passed by NCLAT in the batch of appeals is reversed and is set aside.
2) The appeals preferred before NCLAT against the order dated 16.05.2018, as passed by NCLT on the application filed by IRP, are dismissed; and consequently, the order dated 16.05.2018 so passed by NCLT is upheld in regard to the findings that the transactions in question are preferential within the meaning of Section 43 of the Code. The directions by NCLT for avoidance of such transactions are also upheld accordingly.
3) The appeals preferred before NCLAT against the orders passed by NCLT dated 09.05.2018 and 15.05.2018 on the applications filed by the lender banks are also dismissed and the respective orders passed by NCLT are restored with the findings that the applicants are not the financial creditors of the corporate debtor Jaypee Infratech Limited.
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2020 (2) TMI 1699 - PUNJAB & HARYANA HIGH COURT
Maintainability of appeal against ITAT - low tax effect - Addition u/s 2(22)(e) and 14A deleted - AO treated the loan received from Member(s)/Share-holder(s)/Director(s) holding more than 10% of shares therein, as deemed dividends and made additions under the head “income from other sources” and also disallowance u/s 14A - HELD THAT:- From the perusal of the order of the Tribunal, it is not forth coming that any notification, order, instruction or circular was dealt with/ relied upon by the Tribunal what to talk about the same being held illegal or ultra vires. Even otherwise, the Tribunal has no jurisdiction to declare a circular ultra vires. In our considered view, the case does not fall in the exception clause.
The appeal is dismissed. The substantial questions claimed are kept open.
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2020 (2) TMI 1698 - PUNJAB AND HARYANA HIGH COURT
Dishonour of Cheque - prayer of the petitioner to produce on record the income tax returns of the complainant/respondent was declined - HELD THAT:- The finding recorded by the trial Court in the impugned order dated 27.10.2016 that the ITRs Mark D3 to D6 are pertaining to relevant period is factually incorrect as these are the ITRs for the years 2012-2013 and 2013-14, whereas, as per the case of the complainant, the loan was advanced in the year 2008 and the cheque was presented in 2012 and, therefore, as per the averments made in the complaint and in the statement of the complainant that the petitioner/accused was quarterly paying the amount of interest, which on the face of it, is not reflected in the ITRs for the years 2008-09, 2009-10, 2010-11 and 2011-12. Therefore, the impugned order dated 27.10.2016 is liable to be set aside.
Further, the observations made by the trial Court in the impugned order dated 21.11.2016, whereby the petitioner was not granted one more opportunity to deposit the cost of ₹ 10,000/- imposed for summoning the Clerk of State Bank of India are also not justified as it is very much believable that the petitioner could not be able to deposit the said cost on account of declaration of demonetization on 08.11.2016 resulting into cash crunch and paucity of cash even in banks.
Petition allowed.
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2020 (2) TMI 1697 - CESTAT NEW DELHI
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - duty under the scheme already paid - appellant has not received Form-4 (the discharge certificate) - whether discharge certificate has been deemed issued to the appellant or not? - HELD THAT:- As per the scheme, the SVLDRS Form-3 if not issued to the appellant within a period of thirty days of filing of the declaration discharge certificate is required to be issued.
As per the records, the appellant has paid the amount in dispute. In that circumstances, SVLDRS-3 form has not been issued to the appellant, therefore, the designated authority was duty bound to issue discharge certificate within a period of thirty days of filing of the declaration which they failed to do so - the appellant has complied with the conditions of the scheme i.e. SVLDRS, 2019 and it is deemed that the discharge certificate has been issued to the appellant. In view of this, the appeal is disposed of as withdrawn under SVLDRS, 2019.
Appeal disposed off.
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2020 (2) TMI 1696 - MADRAS HIGH COURT
Stay Application - recovery proceedings - disposing a stay application filed by the petitioner in respect of a disputed demand in respect of assessment year (AY) 2017-18 - HELD THAT:- A perusal of the order reveal that there has been no application of mind by the Assessing Officer in considering the trifolds aspects of (i) prima facie case (ii) financial stringency and (iii) balance of convenience, prior to disposal of the application. See MRS. KANNAMMAL VERSUS INCOME TAX OFFICER WARD 1 (1) TIRUPUR [2019 (3) TMI 1 - MADRAS HIGH COURT]
The impugned order is set aside. The petitioner will appear before the Assessing Officer on Tuesday, the 3rd of March at 10:30 a.m., without expecting any further notice in this regard. The stay application shall be disposed within two weeks thereafter i.e., on or before 17.03.2020. Status quo of recovery be maintained till 17.03.2020.
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2020 (2) TMI 1695 - ITAT PUNE
Disallowance u/s 14A r.w.r 8D(2)(i) and (2) - Calculation of levy of interest u/s 234A and 234B of the Act in respect of self assessment tax paid u/s 140A - HELD THAT:- We direct the Assessing Officer to comply with the directions of Tribunal in group cases of assessee [2019 (4) TMI 214 - ITAT PUNE] and decide the same. AO shall give reasonable opportunity of hearing to the assessee while deciding the issues. Thus, the grounds raised by the assessee are partly allowed as above.
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