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Showing 101 to 120 of 1346 Records

2021 (1) TMI 1250

Joint request has been made for adjournment of the appeal to 1st April, 2021 - Recovery of balance dues - HELD THAT:- Since IRP is not in attendance, let a notice be served upon him through electronic mode to appear and file status report in regard to CIRP.

Let the matter be fixed on 6th April, 2021.
2021 (1) TMI 1249

Seeking amendment in dates - Change in date of adjudication order - HELD THAT:- Prayer being formal is allowed. Let the prayer indicated in paragraph 7 of the instant I.A. be incorporated in paragraph 1 of the writ petition. I.A. Nos.423 of 2021 and 425 of 2021 stand disposed of.

Matter be listed in the 1st week of March 2021. Petitioner, in the meantime, may file rejoinder thereto, if so advised.
2021 (1) TMI 1248

Impleadment of Central Goods and Services Tax through Principal Commissioner - HELD THAT:- Considering the nature of challenge and the inter play of certain provisions of the JGST Act, which are pari materia with the CGST Act, it is deemed proper to implead the Central Goods and Services Tax through Principal Commissioner as respondent no. 5 in the instant writ petition. Let such addition be carried out by learned counsel for the petitioner within 10 days. Office to place the file for inspection and addition on requisition being made within the same time.

Learned counsel for the CGST is allowed 4 weeks’ time to file counter affidavit. One week time thereafter is allowed to learned counsel for the petitioner to file rejoinder, if necessary.
2021 (1) TMI 1247

Seeking direction to Corporate to provide information about the required number of Allottees - directing maintenance of status quo with respect to pending applications - HELD THAT:- The impugned order does not adjudicate upon any right in regard to triggering of Corporate Insolvency Resolution Process. By merely directing the Corporate Debtor to provide information to the Respondent – Allottee to meet the threshold criteria to initiate the class action in the face of the ordinance laying such threshold limit, no legal right vested in the Appellant /Corporate Debtor can be said to have been infringed. In this age of transparency, knowledge and information revolution coupled with the fact that adequate information as required by the Respondent – Allottee is not displayed on the website of the Corporate Debtor, as emanating from the impugned order, the impugned order cannot be termed to be erroneous or unsustainable.

In so far as the direction given by the Hon’ble Apex Court is concerned, it is in regard to initiation or continuance of Corporate Insolvency Resolution Process in the pending cases wherein status quo is directed to be observed. The order of Hon’ble Apex Court cannot be interpreted to hold that the requisite information for initiating class action by an allottee under Section 7 of the I&B Code to meet the threshold criteria laid down under the ordinance cannot be provided, more so when the Corporate Debtor and the Regulator are under legal obligation to display the particulars in regard to allottees on their websites. No prejudice can be claimed by the Appellant on account of the direction in so far as the same relates to providing information in regard to allottee for limited purpose of enabling it to garner necessary support for initiating class action.

The appeal is disposed off with the direction that the Corporate Debtor will display the information in regard to the allottees with full particulars on its website within two weeks from today and that in the event Respondent – Allottee approaches the Appellant for providing necessary information, same shall be provided to the Allottee by the Appellant.
2021 (1) TMI 1246

Reopening of assessment u/s 147 - notice in the company name being amalgamated - As per HC if the company has ceased to exist as a result of the approved scheme of amalgamation then in that case, the jurisdictional notice issued in its name would be fundamentally illegal and without jurisdiction. It is also held that upon the amalgamating entity ceasing to exist, it cannot be regarded as a person under subsection (31) of section 2 of the Act; against whom assessment proceedings can be initiated - HELD THAT:- Tax effect is below the threshold of ₹ 25 lakhs contained in the relevant circular of the Central Board of Direct Taxes.

The Special Leave Petition is, therefore, not entertained and it is dismissed accordingly.
2021 (1) TMI 1245

Seeking approval of the Resolution plan - revival of the Corporate Debtor - HELD THAT:- The facts and circumstances, clearly established that the revised Resolution Plan dated 03.08.2020 submitted by Koncept Shelters, Resolution Applicant, was approved by the Committee of Creditors for Fortuna Buildcon (India) Pvt Ltd. It also provides for the appointment of a Monitoring committee consisting of the Applicant, two representatives from the secured Financial Creditors and one representative of the Resolution Applicant to effectively supervise the implementation of the plan from the date of approval date. The Applicant has filed Form H and also an affidavit by confirming all the requisite procedure under the extant provisions of law have been followed. It is settled position of law that Tribunal cannot interfere the commercial wisdom of COC in taking decision to approve the Resolution plan, unless arbitrary exercise of power is alleged to have been resorted to. The Promoter of Corporate Debtor has also participated in the Resolution process and its Resolution plan has been rejected by COC.

The Resolution Plan in question is in compliance with the object and extant provisions of Code and the rules made there under, and thus it is fit to be approved under Section 31(1) of the IBC, 2016.

Petition disposed off.
2021 (1) TMI 1244

Disallowance u/s 14A r.w.r. 8D - expenditure incurred on exempt income - HELD THAT:- CIT(A) has mentioned in his order that issue is covered by the decision given by his office in appellant own case for A.Y. 2012-13 [2019 (10) TMI 1504 - ITAT AHMEDABAD]wherein he has restricted the confirmed exempt income of the assessee.

In our considered opinion, we do not find any infirmity in the order passed by the Ld. CIT(A). Hence, we confirm the order of the ld. CIT(A) and same does not require any kind of interference at our end.

Late delivery charges disallowance - allowable business expenditure - HELD THAT:- As decided in own case [2018 (12) TMI 182 - ITAT AHMEDABAD] there is no dispute that apportion of the sale consideration was retained by the payees on account of /ate delivery of the machineries and as per the terms of contract, the assessee had to compensate the customers if it fails to deliver the goods on time. There is no dispute that such expenditures were incurred during the ordinary course of the business of the assessee and therefore are directly related to the business activity of the assessee. It is also true that these expenditures are not penalty levied for any infraction of any legislated law of the land but has been incurred out of a contractual obligation. In our considered opinion, such expenditures are definitely of revenue in nature and are allowable u/s. 37 of the Act. Appeal of assessee allowed.

Disallowance of foreign commission u/s 40(a)(ia) - Commission paid to non-resident whose income is not taxable in India and all services rendered outside India and it has not permanent establishment or office of agent in India - HELD THAT:- As decided in own case [2018 (12) TMI 182 - ITAT AHMEDABAD] Section 9 of the act provides for the income deemed to accrue or arise in India. It is noticed that no income is deemed to accrue or arise in India by applying the provisions of section 9 (l)(i) as the assessing officer has failed to establish accruing or arising of any income from business connection in India or through or from any property or through the transfer of a capital asset situated in India. We observe that there was no material which can demonstrate that any of the agents had any Permanent Establishment in India as all the agents had their establishments situated in the overseas places. In the lights of the above facts and detailed findings of the Ld.CIT(A) it is clear that the Provisions of section 9 (1)(i) cannot be applied, therefore we consider that the CIT(A) has rightly deleted the impugned disallowance of commission payment made to the foreign agents. In the result the appeal of the revenue is dismissed.
2021 (1) TMI 1243

Application for early hearing of the case - matter stood adjourned and on the adjourned date too, the matter was not heard, and was again adjourned - the Appellant who being a Financial Creditor, is concerned about further depletion in the value of the assets affecting its claim - HELD THAT:- This appeal is disposed off by requesting the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh to expedite the process and dispose off the same within three months.
2021 (1) TMI 1242

Disallowance u/s 14A r.w.r. 8D - HELD THAT:- It is quite evident that, firstly, assessee had own substantial fund for making the investment; and secondly, the assessee had duly explained and demonstrated that the loan funds could not have been utilized for the purpose of investment. Under these circumstances, the disallowance of interest under Rule 8D (2)(ii) cannot be made and has been deleted by the ld. CIT(A).

As decided in own case [2018 (5) TMI 1021 - ITAT DELHI] assessee has kept all the funds in one common pool, the presumption that the investment has been made from interest bearing funds cannot be appreciated, since for the year under consideration assessee has substantially demonstrated before Ld.CIT(A) regarding sufficient funds being available for investment purposes other than the interest/bearing funds which has not been refuted by Ld. CIT-D.R. CIT(A) has observed that the funds are to be strictly utilised by assessee as per guidelines issued by RBI - submissions advanced by Ld. Counsel regarding there being no details that was filed by assessee in order to demonstrate the non-utilisation of interest bearing funds for the purpose of investments that could yield dividend income. - Decided in favour of assessee.
2021 (1) TMI 1241

Clandestine removal - corroborative evidences - whether the electronic evidence collected during the course of the investigation by the appellant is properly taken into consideration by the Tribunal for adjudication in the appeal or not? - it was held by Gujarat High Court that In view of the findings of facts arrived at by the Tribunal, after considering the material placed before it, no question of law much less any substantial question of law arises for consideration out of the impugned order.

HELD THAT:- There are no reason to entertain the Special Leave Petitions under Article 136 of the Constitution -

The Special Leave Petitions are accordingly dismissed.
2021 (1) TMI 1240

Works contract or not - activity carried on by the assessee, would be amenable to tax or not, as against the works contract - HELD THAT:- In matters pertaining to tax, the court will have to be very slow in exercising the power under article 226 of the Constitution of India. Perhaps, the learned single judge in TVL. UNIQUE TRADERS, VERSUS COMMERCIAL TAX OFFICER – 1, VIRUTHUNAGAR. [2020 (6) TMI 328 - MADRAS HIGH COURT] entertained the writ petition and allowed it in view of the law governing at the relevant point of time. Be that as it may, in view of the judgment of the Full Bench of this court in Unique Traders, there is no controversy over the legal issue and the learned single judge has not gone into the factual issues involved.

The assessee was pursuing the remedy before this court. Therefore, it would only be appropriate to permit the assessee to file a statutory appeal, particularly, when there is a change of law, which has arisen subsequently resolving the conflicting decisions rendered by this court.

The assessee is permitted to file a statutory appeal, within a period of four weeks from the date of receipt of a copy of this order - appeal disposed off.
2021 (1) TMI 1239

Penalty u/s 271(1)(c) - petitioner did not disclose the income out of sale consideration in his return or otherwise before the Department prior to the case being selected for scrutiny - petitioner failed to disclose the income arising out of transfer of long terms capital assets to the tune of ₹ 59,49,000/- in the return filed in the A.Y. 2014-15 despite the sale of his landed property at Bokaro through registered sale on 24.06.2013 i.e., in the F.Y. 2013-14 - HELD THAT:- Petitioner had not disclosed his assets before the income tax department in any of the preceding three assessment years. It was only upon perusal of CIB information extracted from ITD application that it was found that he had sold immovable property of ₹ 59,49000/-but neither the sale consideration nor capital gains was shown by him in the return filed in the A.Y. 2014-15. In those circumstances his case was selected for scrutiny under CASS for assessment. During the course of assessment, petitioner filed a calculation sheet claiming exemption instead of filing a revised return disclosing income arisen from transfer of long terms capital asset due to transfer of his landed property at Bokaro through registered sale deed dated 24.06.2013. It is well settled that such additional claim cannot be made before the assessing officer under the Act to make an amendment in the return without filing a revised return.

This Court in the facts and circumstances of the present case, noted above, finds that there is lack of bonafides on the part of the petitioner. On the one hand, he has not disclosed the assets in any of the returns of three previous years to the year i.e. F.Y 2013-14 corresponding to A.Y. 2014-15. On the other hand, after his case being taken up for scrutiny, without filing the revised return, he sought to raise additional claim for exemption under section 54 F of the Act by filing calculation sheet before the Assessing Officer which was rightly denied in the light of the decision Goetze (India) Limited [2006 (3) TMI 75 - SUPREME COURT] - He straightaway approached the Revisional Authority. Before the Revisional Authority, he failed to appear despite repeated notices. Given the limited scope of revisional power, the Commissioner, Income Tax considering the grounds urged by the petitioner and upon analysis of the findings recorded by the Assessing Officer, did not find any illegality, irregularity or incorrectness in the findings on the basis of the materials on record. Being aggrieved by the order of the Revisional Authority, the writ petitioner has approached this Court in writ jurisdiction.

Upon consideration of the submissions of the learned counsel for the parties and upon analyzing the relevant materials on record including the findings recorded by the Assessing Officer and the Revisional Authority in the light of the decisions referred to hereinabove and relied upon by the parties, we do not find any error in law or on facts warranting interference in the impugned orders in exercise of writ jurisdiction.

Alternative remedy has been raised against the order imposing penalty as is available under Section 246 A(1)(i)(B) - Petitioner however submits that petitioner may be allowed liberty to assail the order of penalty before the Appellate Authority under Section 246(1)(i) (B) of the Act. We may observe herein that this Court has refused to interfere in the order of the Assessing Authority and the Revisional Authority on consideration of the grounds available under the powers of judicial review. We however leave it to the petitioner to approach the Appellate Authority, as per the provisions under the Income Tax Act, 1961 against the order of penalty dated 26.09.2018 (Annexure-9) passed by the respondent no.3- Assessing Officer under Section 271(1) (c) of the Act, if permissible in law. It is made clear that the Appellate Authority may consider the plea of the petitioner uninfluenced by any of the observations of this Court hereinabove. WP dismissed.
2021 (1) TMI 1238

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT:- The petitioner has failed to establish that the Unsecured Loan he has granted falls within the scope of “Financial Debt” in the absence of any Loan Agreement/board Resolution setting out the terms & conditions of the agreement.

Also, we shall not go into the question of whether any amount is due from the Corporate Debtor to the Petitioner or not here and shall only limit us to the issue that whether the petitioner has fulfilled the characteristics of a “Financial Creditor” as defined under Section 7 of the Code or not.

Due to the insufficient evidence/documents provided by the petitioner in the present case, this application is hereby rejected.
2021 (1) TMI 1237

Maintainability of petition - availability of alternative remedy of appeal - Section 100 of the Andhra Pradesh Goods and Services Tax, 2017 - HELD THAT:- The learned counsel for petitioner requested this Court to permit him to approach the Appellate Authority and file the appeal as against the impugned order by granting reasonable time.

This writ petition is disposed of giving three (3) weeks time to the petitioner from today to enable him to file an appeal before the concerned Appellate Authority as against the impugned order AAR No.28/AP/GST/2019, dated 15.07.2019.
2021 (1) TMI 1236

CIRP in process - Operational Creditor has already filed the claim before the IRP/RP - HELD THAT:- The Operational Creditor may be given liberty to revive the Petition. Liberty prayed for is granted, the Petition is dismissed being infructuous.
2021 (1) TMI 1235

The Supreme Court dismissed the Civil Appeal and upheld the order of the National Company Law Appellate Tribunal in Company Appeal (AT) (Insolvency) No 194 of 2020. Any pending applications were disposed of.
2021 (1) TMI 1234

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - personal guarantor to Corporate Debtor - Personal Guarantors are different entities or not - prerequisite for maintainability of an application under Section 95 of the IBC, 2016 - HELD THAT:- It is seen from the records that the Hon’ble NCLAT passed an order setting aside the order of admission of CIRP against the Corporate Debtor vide order dated 09.09.2021 granting time to the Corporate Debtor to settle the dues of Union Bank of India within six months, and liberty to proceed with Insolvency Resolution Process against the Corporate Debtor in the event of default. Since the debt of the Respondent/Creditor herein was not cleared they have filed application under Section 7 of IBC before this Tribunal against the Corporate Debtor and the same is now pending before this Tribunal. Hence, as far as the Creditor SBI is concerned, there is a CIRP pending against the Corporate Debtor.

Hon’ble Supreme Court in Lalit Kumar Jain Vs. Union of India and Ors [2021 (5) TMI 743 - SUPREME COURT] upheld the constitutional validity of the notification by which Section 2(e) was inserted. It was categorically held that personal guarantors, in view of their intrinsic connection with Corporate Debtors shall be dealt differently through same adjudicating process as Corporate Debtor. The impugned notification, similarly inter alia makes the provisions of the Code applicable in respect of Personal Guarantors to Corporate Debtors, as another such category of persons to whom the Code has been extended.

Moreover, the State Bank of India who filed the IBAs under consideration already filed CP(IB)/43/KOB/2021 which is pending adjudication. The Hon’ble NCLAT only set aside the Order passed in favour of the Union Bank of India against the Corporate Debtor. The Guarantors of the Corporate Debtor may be the same in both Insolvency Applications, but as per the decision of the Hon’ble Supreme Court, the Personal Guarantors are different entities and the Creditors may initiate Insolvency Resolution Process against them.

In a situation where Application(s) in relation to the Corporate Debtor for initiation of CIRP is pending at National Company Law Tribunal (NCLT) then, initiation of CIRP of the Corporate Debtor is not a prerequisite for maintainability of an application under Section 95 of the IBC, 2016 filed for initiating Insolvency Resolution Process against the Personal Guarantor of that Corporate Debtor before the NCLT - Application dismissed.
2021 (1) TMI 1233

Late payments towards EPF and ESI u/s 36(1)(va) - deposits prior to filing of the return of income u/s. 139(1) - HELD THAT:- As relying on RAJA RAM VERSUS THE ITO, WARD 3 AND SANCHI MANAGEMENT SERVICES PRIVATE LIMITED [2021 (11) TMI 370 - ITAT CHANDIGARH] the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s. 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee.
2021 (1) TMI 1232

Dissolution of the corporate person - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 r/w Regulation 38 (3) of IBBI (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- All necessary compliances are met by the Company under Liquidation and the Liquidator. Therefore, this Authority in exercise of the powers conferred under Sub-section (8) of Section 59 of I&B Code, 2016, do hereby orders the dissolution of the Corporate Person viz., Tennant Cleaning Systems India Private Limited, from the date of this Order.

The Corporate Person stands dissolved, and the Liquidator stands relieved, who is directed to preserve a physical or an electronic copy of the reports, registers, and books of account, referred to in Regulations 8 and 10 of IBBI (Voluntary Liquidation Process), Regulations, 2017, for at least eight (8) year after the dissolution of the Corporate Person, either with himself or with an information utility.

Application allowed.
2021 (1) TMI 1231

Seeking liquidation of the Corporate Debtor as a going concern - forfeiting the performance security and to initiate penal action as per section 74 (3) of The Insolvency and Bankruptcy Code, 2016 - Resolution Plan has been already approved by this Tribunal - whether the applicant has any locus standi to file the applications, especially for liquidating the Corporate Debtor when a Resolution Plan has been already approved by this Tribunal and the Resolution Applicant has taken over the Corporate Debtor and its properties, as also the revival of the Corporate Debtor factory is under process?

HELD THAT:- If the Corporate Debtor acts in a manner that infringes the norms of the Resolution Plan, then that can be contested. Moreover, any stakeholder’s right stands violated as a consequence of this infringement, he can make an application to the Adjudicating Authority for liquidation of the Corporate Debtor as per Section 33 (3) of the Code - A liquidation proceeding shall be initiated only when the Corporate Insolvency Resolution Process fails. Section 33 of the Insolvency and Bankruptcy Code, 2016 sets out the conditions laying down three scenarios wherein liquidation proceedings can be initiated against the Corporate Debtor. In a situation where a Resolution Applicant succeeds as Corporate Debtor but it fails to comply with its assurance in terms of the resolution plan, what step is to be taken has already been laid down in Sub-Section (3) of Section 33 of the I&B Code.

The expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized - It is significant to point out that pre-occupation of the ‘I & B’ Code with ‘timely resolution of insolvency’ is an important factor. In so far as ‘Liquidation’ is concerned, it destroys the organizational capital etc. ‘I & B’ Code allows ‘Liquidation’ only on failure of ‘CIRP’ and it facilitates/encourages resolution in several manners.

This Bench approved the Resolution Plan submitted by Kerala Industrial Infrastructure Development Corporation (KINFRA), a Statutory authority of the Government of Kerala pursuant to the approval of the Resolution Plan by the COC with 92.72% voting rights - the claim of the applicant was also settled in accordance with the Resolution Plan on 19th March 2021 paying ₹ 12,87,926 within 45 days as provided under the Resolution Plan. The mere allegation that CoC has not constituted the Monitoring Committee and that the conduct of the first meeting of the purported Board would not hold water.

This Tribunal, taking note of the entire conspectus of the attendant facts and circumstances of the instant case in an encircling manner and also keeping in mind the plea taken by the ex- Resolution Professional that out of 145.60 Crores, 144.96 Crore has been disbursed to the stakeholders immediately and balance 0.64 Crore is pending in the accounts of Hindustan Newsprint Limited due to incorrect account details of certain claimants, returned amount due to dormant account details, for which the communication has been sent to claimants to the available Email. The ex-Resolution Professional to disburse the balance amount finding out the correct account details and complete the process without further delay.

Application dismissed.