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Showing 61 to 80 of 1414 Records
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2021 (8) TMI 1356 - KARNATAKA HIGH COURT
Recovery proceedings - provisional attachment order - fixed deposit of the petitioners have been attached by respondent No. 1 by passing provisional order of attachment invoking section 281B(1) - HELD THAT:- Applying the principles laid down in Radha Krishan's case (2021 (4) TMI 837 - SUPREME COURT] to the facts of the instant case, a perusal of the impugned provisional attachment order will clearly indicate that except for merely stating that since there is a likelihood of huge tax payments to be raised on completion of assessment and that for the purpose of protecting the Revenue, it is necessary to provisionally attach the fixed deposit of the petitioners, the other mandatory requirements and precondition as laid down by the apex court have neither been complied with nor fulfilled or followed prior to passing the impugned order. It is apparent that the impugned provisional attachment orders at annexures D and D1 do not satisfy the legal requirements as laid down in Radha Krishan's case (supra) and consequently, in view of the fact that the impugned provisional orders are cryptic, unreasoned, non-speaking and laconic, the same deserve to be quashed.
In so far as the apprehension of the respondents that in the event huge tax payments are to be raised as against the petitioner-assessees, the assessee may not make payment of the same causing loss to the Revenue is concerned, in the light of the undisputed fact that the proceedings under section 153A of the said Act of 1961 have already been initiated coupled with the fact that section 281 of the said Act of 1961, contemplates that any alienation of any property belonging to the petitioners would be null and void, in addition to the specific assertion made by the petitioner that they own and possess immovable property to the tune of more than Rs. 300 crores, the said apprehension of the respondents is clearly unfounded and without any basis and consequently the said apprehension of the respondents cannot be accepted.The petition is allowed.
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2021 (8) TMI 1355 - ITAT MUMBAI
Taxability of shipping income - Income deemed to accrue or arise in India - Income being 7.5% of total freight collections derived from operation of ships in international traffic - business connection or Permanent Establishment (PE) of the Appellant in India - benefit of Article 8 of the Double Taxation Avoidance Agreement between India and UAE (Tax Treaty) - whether benefit of article 8 can be declined in respect of freight collections earned from cargo/containers loaded on slot of other vessels that the OEL, FZCO was entitled to under the joint business/pooling arrangements? - HELD THAT:- DRP fairly accepts the issue is covered, in favour of the assessee, by Hon’ble jurisdictional High Court’s judgement in the case of Balaji Shipping [2012 (8) TMI 681 - BOMBAY HIGH COURT]. The mere fact that an appeal against the said judgement is pending before Hon’ble Supreme Court does not dilate the binding nature of this precedent.
Once Hon’ble jurisdictional High Court takes a view, we are bound to follow the same-in letter and in spirit. Respectfully following the same, we uphold the plea, of the assessee and direct that benefit of article 8 must be extended to entire freight receipts-irrespective of whether the earnings are relating to feeder vessels or by the ships in international traffic. The assessee gets the relief accordingly.
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2021 (8) TMI 1354 - ITAT MUMBAI
Disallowance of interest u/s. 57 (iii) - proportionately disallowing interest on borrowing invoked alleging that entire borrowed funds were not utilized for the purpose of investment in partnership concerns - under the arbitration settlement with the partners, the assessee had to accept rights in respect of three flats in an under construction project at a somewhat high value - HELD THAT:- As rightly held by the assessee in respect of three flats, which are valued by the arbitrator at Rs. 3.25 crores, cannot be considered in isolation with assessee’s investment in the firm. The investment made by the assessee in the firm, to that extent, remains in existence-through in a different form because of the compulsion of a binding arbitration award rather than choice of the assessee. In this view of the matter, the disallowance is devoid of legally sustainable and factually correct basis. Therefore, direct the Assessing Officer to delete the impugned disallowance
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2021 (8) TMI 1353 - SC ORDER
Maintainability of SLP - HELD THAT:- There are no reason to interfere with the impugned orders passed by the High Court of Karnataka dismissing the Writ Appeals of the petitioners.
The Special Leave Petitions are, accordingly, dismissed.
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2021 (8) TMI 1352 - CALCUTTA HIGH COURT
Condonation of delay in filing appeal - appeal rejected on the ground of inordinate delay of more than five years in filing the said appeal while the petitioner is a company not an individual and ordinary citizen or illiterate layman and they could have afforded the service of a competent lawyer, charted-accountant and they have easy access to legal remedy.
HELD THAT:- The learned CESTAT authority has rightly rejected the appeal since the petitioner has no cogent explanation and merit in its application for condonation of delay in filing the appeal.
Application dismissed.
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2021 (8) TMI 1351 - KARNATAKA HIGH COURT
Maintainability of petition - separate cause of action distinct from the one on which the writ petition was structured - HELD THAT:- This writ petition has become infructuous in view of passing of the Order in Original on 05.03.2021 that arguably constitutes a separate cause of action distinct from the one on which the writ petition was structured and therefore, liberty is reserved to the petitioner to lay a challenge thereto, in accordance with law. To facilitate such a challenge being laid, the respondents are directed not to take any precipitatory action pursuant to the said order for a period of four weeks.
Petition disposed off.
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2021 (8) TMI 1350 - BOMBAY HIGH COURT
Dishonor of Cheque - bald statements as regards the role of the applicants - residents of places beyond the jurisdiction of the Magistrate - section 202 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT:- In the present case, perusal of the impugned order dated 15/02/2017, does show that the Magistrate has proceeded to issue process against the applicants by simply recording that the complaint, verification statements and the documents filed therewith have been perused. It is an admitted position that the applicants are all residents of places beyond the jurisdiction of the aforesaid Magistrate.
In the said suo motu proceeding before the Hon'ble Supreme Court in Suo Motu Writ Petition (Cr.) No. 2 of 2020, In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 [2021 (4) TMI 702 - SUPREME COURT], the question as to whether the enquiry under section 202 of the Cr.P.C. was mandatory in the context of complaints under section 138 of the Act of 1881 was specifically raised and answered - the Hon'ble Supreme Court has specifically held that such an enquiry has to be conducted, even in cases concerning complaints under section 138 of the Act of 1881. The impugned order does show that no such enquiry was conducted and therefore it is rendered unsustainable. As regards the other contention raised on behalf of the applicants, this Court is of the opinion that since in the present case, only the order of the issuance of process has been challenged, it would be open to the applicants to raise such contention in an appropriate manner if required, before the Magistrate.
The impugned order passed by the Magistrate is quashed and set aside, since the mandatory requirement under section 202 of the Cr.P.C. was not satisfied - the application is partly allowed.
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2021 (8) TMI 1349 - ITAT BANGALORE
TP adjustment - comparable selection in the ITeS segment - HELD THAT:- As far as exclusion of Infosys Ltd., is concerned, the decision of the ITAT Hyderabad Bench [2018 (6) TMI 505 - ITAT HYDERABAD] cited by the learned Counsel for assessee supports the pela for exclusion. Hence, we direct exclusion of Infosys Ltd., as a comparable company.
As far as exclusion of Cross Domain Solutions Pvt. Ltd., we notice that this company renders diversified Knowledge Process Outsourcing (KPO) providing services in insurance, health care, HR and accounting domains. In the decision cited by the learned DR, the assessee was also in KPO services of providing engineering design services. The assessee in this appeal is a Business Processing Outsourcing Services which are routine in nature and not in the nature of a knowledge process outsourcing. Therefore we prefer to follow the decision cited by the assessee and direct exclusion of Cross Domain Solutions Pvt. Ltd.
Non-grant of working capital adjustment while arriving at the average arithmetic profit margin of comparable companies - In the case of the Assessee in this appeal, neither the TPO nor the DRP have gone into the quantum of adjustment that is to be given towards working of working capital adjustment, we are of the view that it would be just and appropriate to remand the issue of granting of working capital adjustment to the TPO/AO for fresh consideration in accordance with law after due opportunity of being afforded to the Assessee. We hold and direct accordingly.
Claim towards payment of leave encashment - HELD THAT:- In the light of the decision of the Hon’ble Supreme Court in the case of Exide Industries [2020 (4) TMI 792 - SUPREME COURT] the assessee will not be entitled to claim deduction on leave encashment on the basis of the provision. Taking into consideration the circumstances under which the assessee did not claim a sum being leave encashment actually being paid during the previous year relevant to Assessment Year 2014-15 we are of the view that the assessee should be allowed leave encashment actually paid as per provisions of section 43B(f) of the Act. We remit the issue to the AO to verify the claim of the assessee and allow deduction to the assessee as per law after affording assessee opportunity of being heard.
Deduction in respect of Education Cess and Secondary and High Education Cess on Income Tax - HELD THAT:- We have considered the submissions and we find that in the case of Sesagoa Ltd. [2020 (3) TMI 347 - BOMBAY HIGH COURT] held the expression 'cess' used in section 40(a)(ii) of the Act ought not to be read or included in expression 'any rate or tax levied' as appearing in section 40(a)(ii) and consequently, 'cess' whenever paid in relation to business, is allowable as deductible expenditure. Following the aforesaid decision, we uphold the claim of the assessee for deduction of the aforesaid sum.
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2021 (8) TMI 1348 - ALLAHABAD HIGH COURT
Determination of Fee and Administrative expenses payable to each of the Arbitrators in the arbitration proceedings - Erroneous impugned orders or not - whether entire order with the Vice of arbitrariness is vitiated? - HELD THAT:- This Court having heard both the counsel for the petitioners as well as for the respondents, finds that the counsel for both the parties are in agreement with regard to the basic premise on which the orders impugned have been passed being erroneous, vitiating the entire order with the Vice of arbitrariness.
This Court has also carefully gone through the judgments rendered by the Delhi High Court, Patna High Court and the Punjab and Haryana High Court. Although such judgments have only persuasive value and cannot be said to be binding precedings, this Court cannot ignore the observations made therein on the basis of 246th Report of the Law Commission which related to the Amendment Act of 2015. The mischief that was to be sought to be avoided was that of exorbitant costs of Arbitration, arbitrarily fixed by the Arbitral Tribunal which consisted of retired High Court and Supreme Court Judges sometimes. The arbitration proceedings were to be made an attractive proposition for Alternate dispute resolution. The observations made by the Hon'ble Supreme Court in Union of India Vs. Singh Builders Syndicate [2009 (2) TMI 794 - SUPREME COURT] cannot be ignored by this Court, where it was held that A provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration.
This Court is also of the considered opinion that the Fourth Schedule is applicable to even Arbitral Tribunals appointed under Section 11 (2) and the ceiling limit of Rs.30 lacs as Model Fee for all claims above Rs.20 crores would be applicable in the case of determination of Fee of Arbitral Tribunal and the orders impugned have erroneously ignored the Fourth Schedule saying that it would only be applicable to cases where the High Court has framed Rules or appointed Arbitrators.
Whether Fee should be taken as a composite amount or is to be paid separately and individually to each Arbitrator? - HELD THAT:- This Court is of the considered opinion that the arguments raised by Shri Sudeep Seth, learned Senior Counsel appeal more to reason, because under Section 2 (d) of the Act the Arbitral Tribunal is defined either as a sole arbitrator or a Panel of arbitrators and the language used in Sub Section (14) of Section 11 is for "determination of Fees of the Arbitral Tribunal". Had the Legislature intended that the Fee as mentioned in the Fourth Schedule was to be given to each of the members of the Arbitral Tribunal individually, in case it was a multi member body, then it would have clarified the same by appending another note to the Fourth Schedule by saying that in the event the Tribunal is a multi member body each of its its members would be getting the Fee as mentioned in the Schedule.
This Court the orders impugned deserve to be set aside. The orders impugned are set aside - Petition allowed.
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2021 (8) TMI 1347 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - disbursement of amount of loan - date of classification of NPA - existence of debt and dispute or not - HELD THAT:- It is not in dispute that the Financial Creditor is claiming extension of limitation period on account of OTS proposal given by the Corporate Debtor before the expiry of original period of three years from the date of such classification. As far as aspect of extension of limitation is concerned, it is now settled that the provisions of Section 18 of Limitation Act, 1963 are applicable to proceedings under IBC, 2016. This position has also been accepted by the Corporate Debtor as well. However, the Corporate Debtor has taken pleas that OTS proposal dated 06.09.2018 could not be construed as acknowledgement for the purpose of extension of limitation as it is “without prejudice” and also contains a categorical statement that this proposal could not be construed as acceptance of dues by the Corporate Debtor.
From the perusal of provisions of Section 18(1) of Limitation Act, 1963, it transpires that a fresh period of limitation in respect of live claim i.e. enforceable liability to pay subsisting as on the date of acknowledgement is obtained to initiate legal proceedings - In various judicial decisions, it has been held that provisions of Section 18 of Limitation Act, 1963 have to be construed liberally so that party having legal rights do not suffer by an unreasonable approach of the party liable to pay. It is also to be noted that explanation (a) defines that what could constitute as an acknowledgement of liability given in writing. In the present case, OTS proposal has been given in writing whereby the Corporate Debtor has requested to consider its position and accept a particular sum as full and final settlement of its liability towards the applicant-financial creditor. As per explanation (a), even a refusal to pay may amount to acknowledgement whereas in the present case a specific amount has been offered which by itself is sufficient to bring such proposal into the category of acknowledgement.
Authorisation of person who filed this application - HELD THAT:- The Financial Creditor is a scheduled Bank and has got define procedures for delegating authorities to various categories of officers in a structured manner. The person, who has filed this application, is holding the post of Assistant General Manager and has been authorised by the officer of the rank of General Manager - In case of economic laws where health of national economy depends upon the speedy recovery of the money as well as to protect the general public depositors, such technical pleas need not to be given undue weightage which is being sought herein. Hence, the same is rejected.
No material has been brought on record to show that any disciplinary proceedings are pending against such proposed person - Petition admitted - moratorium delcared.
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2021 (8) TMI 1346 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA
Non-payment of fees of the RP - It is submitted that the CoC had approved the fees of the Interim Resolution Professional at Rs.2,50,000/-per month and the Resolution Professional had also proposed his fees at Rs.2,50,000/- per month - HELD THAT:- On perusal of the minutes of the 3rd CoC meeting held on 10.07.2020, it is seen that the CoC had raised concern that the fee proposed by the Resolution Professional and stated that it was on a higher side - The Resolution Professional has discharged his duties according to section 27 of the Code from 31.12.2019 till the date the Corporate Debtor was ordered to be liquidated i.e., 18.03.2021. The Resolution Professional has performed his functions as prescribed and has invited prospective Resolution Applicants and had submitted the Resolution Plan submitted by the promoters for consideration before the CoC.
The Resolution Professional has more responsibilities and duties than the Interim Resolution Professional. We are of the view that it is irrational on the part of the CoC to approve the fee of the Interim Resolution Professional at Rs.2,50,000/- per month but refuse payment to the Resolution Professional at par with the Interim Resolution Professional - The CoC has failed to provide any alternative fee structure also. It is not expected that the Resolution Professional shall have to forgo his fee solely on the account of the fact that the CoC has not approved the fee. The CoC has also not cared to enter appearance in the matter before this Adjudicating Authority in spite of notice.
A payment of Rs. 15,00,000/- directed as a consolidated fee to the Resolution Professional for the entire CIRP period. This shall be paid within a period of two weeks from today.
Application disposed off.
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2021 (8) TMI 1345 - ITAT MUMBAI
Benefit of Vivad Se Vishwas Scheme, 2020 - HELD THAT:- As submitted by assessee, after re-evaluating the decision whether to opt for Vivad Se Vishwas Scheme, 2020, the assessee ultimately decided against it and preferred to pursue the appeal.
In view of the fact that the assessee has decided against availing the benefit of the Vivad Se Vishwas Scheme, 2020 and wants to pursue the present appeal, we are inclined to recall the order [2020 (12) TMI 1352 - ITAT MUMBAI] and restore the appeal to its original position. Registry is directed to fix the appeal for hearing in due course before the assigned Bench. Fresh date of hearing of the appeal should be intimated to both the parties.
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2021 (8) TMI 1344 - GUJARAT HIGH COURT
Modification in the order dated 30.06.2021 - HELD THAT:- In place of the words “already identified and selected by CWC”, the following words will be substituted in paragraph 33(ii) & (iii) of the Judgment dated 30.06.2021:
“identified and proposed by the Respondent APSEZL and finally selected by CWC subject to the time-frame prescribed in the present Judgment.”
The Misc. Civil Application (For Modification of Order) No.1 of 2021 is accordingly disposed of with the aforesaid modification.
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2021 (8) TMI 1343 - DELHI HIGH COURT
Validity of Faceless Assessment - Necessity of issuance of a prior show cause notice and draft assessment order before issuing the final assessment order - HELD THAT:- Since in the present case no prior Show Cause Notice as well as draft assessment order had been issued before passing the impugned assessment order, there is a blatant violation of principles of natural justice as well as mandatory procedure prescribed in “Faceless Assessment Scheme” and as stipulated in Section 144B of the Act.
Keeping in view the aforesaid facts, the impugned assessment order, notice of demand and notice of penalty dated 19th April, 2021 for the Assessment Year 2018-19 are set aside and the matter is remanded back to the Assessing Officer, who shall issue a draft assessment order and thereafter pass a reasoned order in accordance with law
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2021 (8) TMI 1342 - KERALA HIGH COURT
Addition u/s 32(1)(iia) read with the second proviso - left over additional depreciation brought forward from immediately preceding assessment year - HELD THAT:- The identical issue in the case of assessee herein has already been considered by this Court in [2021 (8) TMI 1341 - KERALA HIGH COURT] and decided in favour of the assessee and against the revenue. Hence Question No.1 is answered in favour of the assessee and against the revenue.
Deduction u/s 80-IA - Whether DG Power Generation Units constituted an "undertaking" for the purpose of deduction? - HELD THAT:- The identical issue in the case of assessee herein has already been considered by this Court in [2021 (7) TMI 1387 - KERALA HIGH COURT] and decided in favour of the assessee and against the revenue. Hence Question No.3 is answered in favour of the assessee and against the revenue.
Addition made u/s.36(1) (va) r.w.s.2(24)(x) in respect of belated payment of employees' contribution to PF - HELD THAT:- The identical issue has already been considered by this Court in [2019 (4) TMI 370 - KERALA HIGH COURT] and answered in favour of the revenue and against the assessee. Hence Question No.4 is answered in favour of the revenue and against the assessee.
Weighted deduction under Section 35(2AB) in respect of the salary paid on outdoor R & D facility - question refers to salary paid at an outdoor R&D facility and the payment is without qualification of the DSIR - HELD THAT:- The question does not refer to the circumstances considered and accepted by the DRP while appreciating the claim of expenditure to accept the salary paid by the assessee company to Mr.Peter Becker, an employee of subsidiary of the assessee as an allowable expenditure. The assessee demonstrated the utilisation of services and once the salary paid to Mr.Peter Becker is accepted as expenditure, the reason to disallow weighted deduction is completely wanting. The department could not before the Tribunal demonstrate that the expenditure accepted in respect of Mr.Peter Becker is untenable in fact. The services are stated to have been taken and remuneration paid to the employee in the field, section accords weighted deduction as additional deduction.
The findings of fact recorded by the DRP and the Tribunal are available in the circumstances of the case, we are convinced that the question framed is without merit. Hence question is answered in favour of assessee and against the revenue.
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2021 (8) TMI 1341 - KERALA HIGH COURT
Additional depreciation allowed u/s 32(1)(iia) - HELD THAT:- It is not in dispute and the fact that the assessee at the first instance availed 50% of additional depreciation allowed u/s 32(1)(iia) - assessee could avail 50% of the allowed depreciation on account of the fact that the equipment for which depreciation was claimed was not used was not used for more than 180 days in the previous year 2006-07. Thus, the assessee claimed 10% of permissible 20% depreciation in the previous year 2006-07 and claimed balance 50%, i.e., 10% of 20%, in the Assessment Year 2007-08. The Tribunal held that there is no restriction in the Income Tax Act that balance of one-time-incentive in the form of additional sum of depreciation cannot be availed in the subsequent year.
Assessee refers to and relies on the judgments T P Textiles (P) Ltd. [2017 (3) TMI 739 - MADRAS HIGH COURT] and Rittal India (P) Ltd [2016 (1) TMI 81 - KARNATAKA HIGH COURT] for sustaining the view taken by the Tribunal. Also argued that the clarificatory amendment made to Section 32(1)(ii) with effect from 01.10.2016 supports the deduction claimed by the assessee. The amendment, no doubt, was introduced with effect from 01.10.2016, is a clarificatory amendment. The decisions relied on by the assessee are directly on the point and we are in full agreement with the view taken by the Madras and Karnataka High Courts. The propositions stated in the reported judgment applies in all fours. By following the reasons and principles laid down in T P Textiles (P) Ltd. and Rittal India (P) Ltd (supra), question nos.1 and 2 are answered against the Revenue and in favour of the assessee.
Disallowing the balance investment of the Appellant in Gujarat Perstop Electronics Ltd. (GPEL) - HELD THAT:- The reframed question has bearing on the view expressed by this Court on a similar question stated in the Assessment Year 2002-03 and the judgment is reported in Commissioner of Income-Tax v. Apollo Tyres Ltd. [2019 (12) TMI 375 - KERALA HIGH COURT] Point no.3 in the reported judgment deals with these aspects of the matter and by following the judgment in Apollo Tyres Ltd (supra), the question is answered in favour of the assessee and against the Revenue.
Deduction u/s 80IA - Whether DG Power Generation Units 1 and II constituted an "undertaking" under Sec. 80IA - HELD THAT:- As a matter of fact, that the questions raised in this appeal, namely question nos.4 and 5 are similar to the questions raised by the Revenue for the Assessment Year 2002-03 [2019 (3) TMI 1549 - KERALA HIGH COURT] the appeals filed by the Revenue were dismissed. Our attention has been drawn to the reasoning and conclusion recorded by this Court on similar questions framed in [2019 (3) TMI 1549 - KERALA HIGH COURT] - the substantial questions of law raised as question nos.4 and 5 are answered in favour of the assessee and against the Revenue.
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2021 (8) TMI 1340 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Provisions for payment of dues of the Appellant which were operational dues, were not made - Resolution plan already approved - HELD THAT:- Although it is stated that collectively Hundred Crores are involved with regard to both the Appeals, the fact remains that till the Resolution Professional was approved no claim was submitted by the Appellants in both these Appeals. The Impugned Order shows that these were proceedings arising out of Company Petitions of 2018 and thus the excuse of Covid-19 which attracted Lockdown in March, 2020 is not appealing.
There are no reason to entertain these Appeals. Even if the Resolution Plan has been challenged in other Appeals by other entities succeeds, fact would still remain that the claims of the Appellants were never filed during CIRPs and thus there was no question of considering the same in the Resolution Plan.
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2021 (8) TMI 1339 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI
Stay of impugned order - stay on further proceedings - HELD THAT:- Before the next date of Hearing, it is open to the Learned Counsel(s) for the Appellant(s) side and the Learned Counsel(s) for the Respondent(s) side to complete their pleadings like filing of Reply/Response/Counter in the respective Appeals and also filing of Rejoinder, if any, before the ‘Office of the Registry’ (not only through e-filing but also through Hard Copy) and the necessary copy shall be exchanged between the Learned Counsel(s) one week before the next date of Hearing.
The Office of the Registry is directed to List the matter on 16.09.2021.
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2021 (8) TMI 1338 - CHHATTISGARH HIGH COURT
Dishonor of Cheque - examination of cheque through handwriting expert as per provisions of Section 45 of the Indian Evidence Act - Section 138 of the Negotiable Instruments Act, 1881 - whether the application of the petitioner for examination of handwriting expert is justifiable or not in view of specific facts and circumstance of the case? - HELD THAT:- It is crystal clear that the petitioner's right to lead evidence has been closed against which revision has been dismissed by the Sessions Judge and Criminal Misc. Petition by this Court as well as the SLP by Hon'ble the Supreme Court in G. Someshwar Rao Vs. Samineni Nageshwar Rao & another [2009 (7) TMI 1378 - SUPREME COURT] on the ground of delay. Thus, the petitioner has not availed the remedy of defence witnesses, but the reason assigned for not examining the evidence is that on the pretext of compromise arrived at between the parties, the evidence has not been led, therefore, it is well settled that an accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of subsection (2) of Section 243 of the Code of Criminal Procedure.
This Court can draw inference that from very beginning, the petitioner has built up the defence that the cheques have been misused by the respondent and opportunity to lead evidence was closed by the learned trial Court which was affirmed by the Revisional Court, this Court and SLP has also been dismissed by Hon'ble the Supreme Court. In such situation, if accused is not granted liberty for his possible defence, which he has taken right from the beginning, this will amount to denial of principle of natural justice as well as the law laid down by Hon'ble the Supreme Court.
The order by which the Revisional Court has dismissed the revision and affirmed the order passed by Chief Judicial Magistrate, Korba (C.G.) is liable to be and is hereby quashed, subject to payment of cost of Rs. 20,000/- payable to the respondent - Petition allowed.
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2021 (8) TMI 1337 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Liquidation to Corporate Debtor - section 33(2) of the insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Committee of Creditors in its 5th CoC meeting held on 24.02.2020 had decided, with 100% voting share, to liquidate the assets of the corporate debtor.
In the factual background of the present case, the Resolution Professional proposed, in the 5th CoC meeting, to send the CD into liquidation. Further the CoC have also, after all the discussions and deliberations, resolved to liquidate the Corporate Debtor under Section 33 of the Code.
The application is hereby allowed by ordering liquidation of the corporate debtor, namely M/s Radhey Sham Tandon Manufacturing Private Limited - Application allowed.
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