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Showing 361 to 380 of 1346 Records
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2021 (1) TMI 988
Approval of scheme of amalgamation - seeking for dispensation with the meeting of equity shareholders and unsecured creditor - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The meeting of the Equity Shareholders and Unsecured Creditors of the Transferor Company be dispensed with - the Applicant Companies shall serve the notice of Application along with a copy of the Scheme upon – (i) Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai; (ii) Registrar of Companies, Maharashtra, Mumbai; (iii) Income Tax Authority within whose jurisdiction the Applicant Companies' assessments are made in terms to section 230(5) of the Act and as per Rule 8 Rules. If no response is received by the Tribunal from the regulatory authorities within 30 days of the date of receipt of the notice it will be presumed that the Authorities have no objection to the Scheme - the First Applicant Company is also directed to serve notice of Application along with a copy of the Scheme upon the Official Liquidator pursuant to Section 230(5) of the Act.
Application allowed.
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2021 (1) TMI 987
Seeking restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies.
The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company, as if the name of the Company has not been struck off from the Register of Companies and take all consequential actions like change of company’s status from ‘Strike off’ to ‘Active’ (for e-filing) and to intimate the bankers about the restoration of the name of the company so as to defreeze its accounts - Application allowed.
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2021 (1) TMI 986
Scheme of amalgamation - seeking dispensation of meetings of the Equity Shareholders of the Applicant Companies, meetings of unsecured creditors of Transferor No.3 and Transferee - Applicant Companies - seeking dispensation of secured creditor of the Transferee pursuant to the receipt of the individual consent affidavits consenting to the scheme - seeking waiver of right to attend the meeting of equity shareholders and unsecured creditors and consent of the secured creditor, for the purpose of considering and if thought fit, approving, with or without modification - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The Applicant Companies shall in compliance with subsection (5) of section 230 and Rule 8 of the Companies (CAA) Rules, 2016, send a notice of meetings under subsection (3) of section 230 read with Rule 6 of the Companies (CAA) Rules, 2016 in Form No. CAA.3, along with a copy of the Scheme of Amalgamation, explanatory statement and the disclosures mentioned under Rule 6, wherever applicable, to (i) Central Government through the Regional Director, North Western Region, (ii) Registrar of Companies, (iii) concerned Income Tax Authorities, and (iv) the Official Liquidator (in case of First Applicant Company, the Transferor Company) stating that the representations, if any, to be made by them shall be made within a period of 30 days from the date of receipt of such notice, failing which it shall be presumed that they have no objection to make on the proposed Scheme of Amalgamation. The aforesaid statutory authorities, who desire to make any representation under sub-section (5) of section 230 shall send the same to this Tribunal within a period of 30 days from the date of receipt of such notice, failing which it shall be deemed that they have no representation to make on the proposed Composite Scheme of Arrangement.
Considering the consent affidavits as received from the equity shareholders, unsecured creditors of the Transferor No.2 and Transferee and secured creditor's consent of the Transferee and upon waiving their individual rights for attending the meeting for considering and if thought fit with or without modification the scheme of amalgamation and considering the certificate of Chartered Accountant and all the consents are in order and hence the meeting of the equity shareholders of all the Companies are dispensed with.
Application allowed.
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2021 (1) TMI 985
Restoration of the name of the Appellant Company in the register of the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- That the Income Tax Department has filed its Report and has reconfirmed this fact from their records that 'nil' taxes were paid or negative income was shown by the Appellant Company for the Assessment Years from 2012-13 to 2017-18 - That the 'NIL' revenue from operations in Balance Sheets, 'NIL' income shown in the Income Tax Returns and insignificant entries in bank statements - all reflect that the Appellant Company was neither in operation nor doing any significant business at the time when its name was struck off from the register of RoC.
It is worthwhile to refer to the Judgement of Hon'ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal [2019 (7) TMI 1467 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] where it was held that A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression "or otherwise" which would be a travesty of justice besides defeating the very object of the Company.
This Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013 - Appeal dismissed.
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2021 (1) TMI 984
Seeking restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The counsel for applicants has filed provisional balance sheet for the financial years 2017-18 and 2018-19. He has also filed provisional income tax returns for the financial year 2017-18 and 2018-19 along with memo dated 17.08.2020. As seen from the provisional profit and loss statement for the year ended 2017-18 the company is having revenue from operations at ₹ 2,20,000/-. As seen from the provisional profit and loss statement for the year ended 2018-19 the Company is having revenue from operations is shown at ₹ 2,85,000/- This shows the company is ongoing concern. The applicants complied the requirements pointed out by the ROC, in his report. Therefore there are grounds to restore the company - Further, it is also seen that the latest Balance sheet as on 31st March 2017 of the Company. The Company is having total Assets (Non-current and current) at ₹ 33,124/- and Revenue from operations is at ₹ 1,95,000/- as on 31.03.2017.
After going through the provisions of Section 252 (3) of the Companies Act, 2013, this Tribunal is of the view that the Company was in existence and it is a going concern and name of Company to be restored in the Register of Companies as maintained by RoC - Registrar of Companies, the respondent herein, is ordered to restore the original status of the Applicant Company as if the name of the company has not been struck off from the Register of Companies and take all consequential actions like change of company's status from 'strike off' to Active (for e-filing), to restore and activate the DINs if applicable, to intimate the bankers about restoration of the name of the company so as to defreeze its accounts - Application allowed.
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2021 (1) TMI 983
Approval of scheme of Amalgamation - seeking directions for convening meetings of equity shareholders and unsecured creditors of Transferor Company - seeking directions to dispense with the meeting of equity shareholders and to order convening meetings of Secured and unsecured creditors of Transferee Company - HELD THAT:- This is the first stage Application seeking convening meetings of Shareholders and Unsecured Creditors of Transferor Company and further requesting for dispensation of meeting of Shareholders and convening meetings of Secured and Unsecured Creditors of Transferee Company as all the shareholders have given their consent in the form of sworn Affidavits. The proposed scheme in question prima facie satisfy fundamental requirements for its sanction, subject to approval of this Tribunal. The Applicant Companies are stated to be following all provisions of Companies Act, 2013, and rules made thereunder. In any case, dispensing with meeting of shareholders of Transferee Company would not deprive any aggrieved party to approach this Tribunal at any point of time, when the approval of scheme in question finally comes for consideration. Therefore, the Joint Company application deserves to be allowed.
Application allowed - various directions issued regarding holding and convening of various meetings and also directions regarding issuance of various notices, issued.
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2021 (1) TMI 982
Violator indulging in serous act of misusing client's securities - appellant was expelled from the membership of the respondent exchange and also declared as a defaulter - HELD THAT:- All the violations are admitted by him. No reply was submitted to the show cause notice issued regaring violation noted in the inspection for the year 2017-18. Considering the request of the appellant that he wanted to surrender his license afer redressing the complaints the investors, the Committee of respondent no. 1 time and again granted him time in hearing of the proceedings.Ultimately finding that the complaints were not resolved completely the impugned order was passed.
As seen that after declaration of the appellant as a defaulter more complaints of the investors are pouring in with the respondent nos.1 and 2. The appellant was earlier penalized for similar violations for the financial years 2015-16, 2016-17 and 2017-18. In the circumstances in our considered view the appellant is a continuous violator much less a repeat violator. Besides respondent no 1 had already granted more than sufficient opportunity to redress the complaints of the investors, as it pleaded that it wanted to surrender the license. Therefore in our view this is not a fit case for interference in the impugned order. Hence the appeal is hereby dismissed.
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2021 (1) TMI 981
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - outstanding sum has been claimed at ₹ 11,30,146/- and date of default has been claimed as Financial Year 2018 - HELD THAT:- In case of proceedings under Section 9 of IBC, 2016 or section 8 of IBC 2016 of significant nature. It has been observed by higher judicial forums that requirement of service of notice under Section 8(1) of IBC, 2016 is crucial so that any entity is not put into CIRP in a light manner. Rule 5 (Application to Adjudicating Authority) Rules, 2016 provides that Operational Creditor "shall" deliver to the Corporate Debtor. Demand notice in form-3 or copy of invoice attached with the notice in Form-4. Form No.3 and Form No.4 have been prescribed which provide for submission of all relevant information to the Corporate Debtor alongwith supporting documents so that the Corporate Debtor can raise dispute, if any, under Section 8(2) of IBC, 2016 within 10 days from the receipt of such notice.
In the present case, so-called notice does not contain such details / information nor any documents which are required to be given to the Corporate Debtor alongwith such notice have been attached. In a number of cases, coordinate benches as well as Hon'ble NCLAT has taken a view that such notice is necessarily to be in the prescribed forms and in absence thereof, application filed under Section 9 was liable to be dismissed. As stated earlier, neither specified form has been delivered nor contents of such notice meet the requirements of law - the present application is liable to be dismissed as it is an incurable defect.
Application disposed off.
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2021 (1) TMI 980
Seeking direction to the Respondent, i.e. Bank of India, to release an amount of ₹ 100 Lacs held in the "No Lien Account", for the purpose of Insolvency Resolution Process - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is noted that the Corporate Debtor, to show their commitment and bonafide towards resolution plan (i.e. one time settlement proposal) has furnished a Cheque for ₹ 1 crore to the respondent/ bank on 12.07.2017 along with a letter with a request to keep the proceeds in "No Lien Account" and instructed that the said amount may be adjusted / utilized upon approval of resolution plan (i.e. one time settlement), however, in any case, it should not be adjusted towards interest/ other charges/ principal till then. The company is committed to bring the balance amount to the extent of 10% as per their commitment once approval is accorded by the lead bank.
Before the date of commencement of CIRP, the respondent bank has not adjusted this amount in the loan account of the corporate debtor, whereas it has kept the same in a separate account as instructed by the corporate debtor. It shows that the bank has agreed for no lien to this amount till OTS proposal is approved by the bank. Hence, on initiation of CIRP, the amount kept in a separate account as 'No Lien Account' by the respondent bank is the asset of the corporate debtor and the RP has to deal with the same as per the provisions of the IB Code.
Application allowed.
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2021 (1) TMI 979
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of debt or not - existence of debt and default or not - Time Limitation - HELD THAT:- The date of default is 06.03.2019 and the present application is filed on 16.03.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete.
It is clear that the default has occurred and the debt is due and payable. Further, the present application has remained uncontroverted with respect to the claim of the applicant. On the contrary, the corporate debtor in its Section 10 application itself admitted the claim of the present applicant of ₹ 3.5 Lakh which is recorded vide order dated 16.12.2020. Hence the application deserves to be admitted and the applicant is entitled to claim the admitted amount which is still outstanding and has remained unpaid till date. Therefore the applicant is admitted.
Application admitted - moratorium declared.
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2021 (1) TMI 978
Seeking relief asking for closure of the liquidation process without dissolving the Corporate Debtor as long as Section 54 of the Code passed by the Parliament is in force - Can such a relief be passed by this Authority by looking at the liquidation Regulations issued with the power conferred upon IBBI under section 240 (Regulation making power) and Section 196 (Powers and Functions of IBBI) of the Code? - HELD THAT:- If the Code is carefully read, it could be ascertained that wherever the Code felt that IBBI assistance is required, it has been specifically stated "as specified by the Board or in such manner as may be specified or prescribed" we must at the cost of repetition reiterate, this clause is indicative of the fact that beyond the procedure inbuilt in the Code, if additional mechanism or paraphernalia is required to accomplish implementation of the statute, there it has been mentioned as "as specified by the Board or in such manner as may be specified or prescribed". The point to remember is, it is for supplementation, not for supplantation.
The purpose and object of the Regulations issued by IBBI is to carry out the provisions of the Code, not for carrying out the purpose of the Code. It is in a way carrying out the provisions of Code will tantamount to carrying out the purpose of maximization of value as well. Here IBBI cannot jump the gun and say it has changed the procedure for maximization of value. As we all know, once the CIRP period is over, CoC will not remain in existence. Exercising commercial wisdom by the CoC has its own limitations. They can decide how much they get from the Resolution plan. The financial creditors converting into stakeholders during liquidation can express their wish in the meetings, but the liquidator is not bound by such decisions - It is explicitly mentioned in sub-section -1 of section 240, Regulations are to sub-serve sections of the Code in implementation.
The delegated legislation shall not overreach Sections - When the dissolution is made explicit, IBBI ought not to have ignored the mandate u/s 54 of the Code. When something is said in preamble, it shall be assumed that a whole gamut of provisions of that enactment have come into existence to fulfill that policy alone. At the time when any Bill is laid before legislature, every clause/provision is weighed to balance the same with preamble of the Bill, if that balance is disturbed by outside agencies after enactment, that too without power, the inbuilt balance will be lost - If any study is made by a recommending agency like the Law Commission or Committee set up to look into the efficacy of the enactment, it will recommend to the legislature. In this process, if any particular provision is found not workable and the result is not in conformity with the purpose and object of the enactment, it has to go back to the maker. Repairing is not the job of Regulating Authority. In fact, the Regulating Authority or Rule Making Authority shall provide a support system for effective implementation of the provisions of the Code, not to travel beyond the line of control.
In section 240 (2) (y) also, IBBI is limited to regulate the manner of evaluating the assets and property of the corporate debtor under clause (c), the manner of selling property in parcels under clause (f), the manner of reporting progress of the liquidation process under clause (n), and the other functions to be performed under clause (o), of sub-section (1) of section 35. Therefore by reading all these, it is nowhere found in the Code that the corporate debtor could be alienated to the purchaser by dispensing with dissolution. If concessions are started providing, there won't be certainty, predictability, uniformity; nobody knows what decision will come tomorrow. This will lead to facelessness and discordancy - Even in Section 240(2)(zk), the regulating power is limited to the period and the manner of distribution of proceeds of sale under sub-section 1 of section 53, if it is seen juxtaposition to Section 53, it only deals with sale of the liquidation assets, it does not speak about sale of the Corporate Debtor, sale of the Corporate Debtor is altogether different from sale of assets. The only power that is given under section 53 is, to convert assets of the Corporate Debtor into sale proceeds, therefore it could not be construed that Section 53 envisages sale of the Corporate Debtor. When section itself has not conferred any right to sale of the Corporate Debtor, where is the question of IBBI setting out a new concept of sale of Corporate Debtor without any support of any of the sections of IBC.
In section 240 (2), regulating power is given to bring in supplementary procedure with regard to the sections mentioned therein, but not to the sections not mentioned in sub-section 2 of section 240. Section 54 is not included in section 240 (2) of the Code In section 54 also, it has not been mentioned "as specified by the Board or in such manner as may be specified or prescribed". When no discretion is given to IBBI to help out in implementation of section 54 of the Code, it should not have given an unsolicited go-by to the dissolution in the case of a business sold as a going concern - This Regulation has been newly inserted on 25-7-2019, simultaneously along with this Regulation, CIRP Regulation 39C was inserted creating a right to CoC for approving a resolution to explore sale of the Corporate Debtor as a going concern under clause (e) of Regulation 32 of Liquidation Regulations in the event the corporate debtor goes into liquidation, on this premise the liquidator shall identify and group the assets and liabilities and ought to be sold as going concern, this RP shall place it before this Adjudicating Authority.
Insolvency and Bankruptcy Code is an embodiment of substantial rights laced with procedural mandates. When procedure itself is part of the enactment, the Regulating Authority cannot rewrite the procedure obliterating the provisions of IBC. Yes, the Regulating authority may bring in subordinate procedure for full implementation of the sections of the Code. What could be liquidated is the assets of the debtor company, this concept of liquidation of assets shall not be construed as inclusion of sale of the company - The procedure is already set out under the Code for rearrangement under insolvency and resolution process thereafter another window under liquidation through sec. 230 of the Companies Act, 2013, therefore there cannot be any other procedure which is militating the procedure set out under the Code.
Application dismissed.
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2021 (1) TMI 977
Seeking stay on the process of finalization of the Approval of the Resolution Plan - seeking direction to Mr. B.C. Ganesh (RIO), who is common witness in all agreements should submit all Bank Statements and Income Tax Returns for last five Financial Years and disclose true identity - HELD THAT:- Since the Applicant has not brought on record any fact or evidence to show that the successful Resolution Applicant falls within any of the categories of the ineligibile persons under Section 29A of the Code, the prayer made for declaring the successful Resolution Applicant as ineligible cannot be acceded to and is therefore negated.The Applicant's prayer for passing an order to consider its Resolution Plan with the consideration for ₹ 27.00 Crores when it was the H1, is against the one of the prembled objectives of the IBC 2016, namely "maximisation of value" of stressed assets for resolving insolvency. In fact, the Applicant itself has been submitting revised Resolution Plans for ₹ 30.20 Cr. on 15.06.2019 and for ₹ 37.21 Cr. on 25.06.2019 respectively. Further, the Applicant also participated in inter se bidding with the successful Resolution Applicant wherein the Applicant itself made a bid for ₹ 42.71 Cr. It withdrew only after the successful Resolution Applicant made a bid for ₹ 42.96Cr. Therefore, seeking a direction to consider it's Resolution Plan for ₹ 27 Cr. at this stage is both unreasonable and against the tenets of IBC 2016. Therefore, this prayer is also negated.
Seeking stay on process of finalization of the approval of the Resolution Plan submitted by the R 7 till the disposal of this IA - HELD THAT:- According to the provisions of IBC, 2016 once a CIRP application is admitted, it is the duty of RP to constitute CoC and thereafter publish Eol, Information Memorandum and evaluation matrix on the basis of decisions taken in CoC meetings. Thereafter, upon receipt of Eol by potential Resolution Applicants, various Resolution plans are examined by the RP and the same are put up before the CoC for deliberations about each of those plans for considering their feasibility and reliability. In this regard, it is pertinent to note here that under the provisions of the Code, the commercial wisdom of the CoC has been given paramount status without any judicial intervention.
In the instant matter, the CoC have approved the Resolution Plan submitted by the successful Resolution Applicant as per their "commercial wisdom" in terms of Section 30(4) and the same is pending before this Adjudicating Authority for determination under Section 31 of the Code - the Applicant's prayer for staying the process of approval/determination of the CoC approved Resolution Plan by this Adjudicating Authority cannot be acceded to.
Application dismissed as not maintainable.
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2021 (1) TMI 976
Approval of Resolution Plan - sections 30(6) and 31 of the I&B Code, 2016 r/w Regulation 39(4) of CIRP Regulations, 2016 - HELD THAT:- It appears that the Resolution Plan dated 26th February, 2020 as duly approved by the Committee of Creditors on 28th February, 2020 for Badami Sugars Limited, submitted by M/s. Sri Sai Priya Sugars Limited, satisfies all the requisite conditions for its approval under section 31(1) of the Code. Details of the fund infusion, and the sources from which the Resolution Applicant shall arrange the same have been provided in the Resolution Plan. The same provides for the creditors in the distribution table filed with the Plan, and provides adequate details of the infusion of funds required as working capital as well as for payment of the debts. Details of projected profits and cash flows have also been provided. Considering also the past experience in similar business and credentials of the Directors and Promoters of the Resolution Applicant, as mentioned in the Resolution Plan, we are satisfied about the viability of the same. The Resolution Plan also provides for the appointment of a Monitoring Professional, to oversee the implementation of the Resolution Plan. The Resolution Plan is approved by the CoC with 100% in accordance with law. No prejudice would be caused to any party, if the same is approved.
The said Resolution Plan is fit to be approved under section 31 (1) of the Code.
The Resolution Plan dated 26th February, 2020 submitted by M/s. Shri Sai Priya Sugars Limited as approved by the Committee of Creditors at their 5th meeting held on 28th February, 2020 with 100% voting is hereby approved by declaring that the Resolution Plan will be binding on the Corporate Debtor (Applicant) and its employees, members, creditors including the Central Government, any State Government or any local authority to whom a debt in respect of payment of dues arising under any law for the time being in force, as authorities to whom statutory dues are owed, guarantors, and other stakeholders involved in the Resolution Plan - Moratorium shall cease to have effect.
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2021 (1) TMI 975
Provisional attachment of immovable properties - Validity of summons issued under PMLA - Jurisdiction of Director/Deputy Director to attach the immovable properties which were acquired prior to coming into force of the PML Act - properties in possession of the petitioner, proceeds of the predicate crime or not - HELD THAT:- The petitioner does not dispute the authority of the Deputy Director to pass the impugned provisional order of attachment. The constitutional validity of section 5 of PML Act is also not under challenge. The said order as well as the records indicate that a report has been forwarded to the Magistrate under section 173 of Cr.P.C. in relation to the scheduled offences i.e., under section 13(1)(e) read with 13(2) of the PC Act on 28.02.2013. The order reflects the application of mind and also the elaborate reasons to arrive at the conclusion that the property in question was the proceeds of crime within the meaning of section 2(1)(u) of the PML Act. The said order therefore is beyond challenge in a writ proceeding as no error of law and fact is reflected in the impugned order. Even otherwise, the PML Act has provided for adequate safeguards to protect the rights of the accused by providing that the order of attachment shall cease to have effect after the expiry of the period specified in the said section or the date of order made under sub-section (3) of section 8 of PML Act - More importantly, an adjudicatory mechanism is provided under section 8 of the PML Act and the petitioner has availed the said remedy and has participated in the proceedings before the Adjudicating Authority. Considering the contentions urged by the petitioner, the Adjudicating Authority has come to the conclusion that the petitioner has committed the scheduled offences, generated proceeds of crime and laundered them vide Annexure-‘E’. As adequate and efficacious remedy is available to the petitioner against the said order, petitioner is not entitled for the relief (v) claimed in the petition.
A reading of the complaint (Annexure-A) indicates that it was filed under section 45(1), 3 and 4 of the PML Act. It is alleged therein that accused Nos.1 to 4 have committed offence under section 3 of the PML Act and liable to be punished under section 4 of the PML Act. But the impugned order does not reveal as to the offences for which the accused have been summoned to appear before the court - As the order passed by the learned Special Judge taking cognizance and issuing summons to the petitioner does not satisfy the basic legal requirements, the impugned order to that extent has turned out to be ex-facie perverse and bad in law. To this extent, petitioner is entitled for the relief claimed in the petition.
Petition allowed in part.
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2021 (1) TMI 974
Wealth tax assessment - assessee has challenged inclusion of residential property at Mc Nichols Road on the ground that said property was used for the purpose of residence and hence the same is exempted u/s.5(1)(vi) - assessee has also challenged valuation adopted by the AO on the ground that the AO ought to have followed the method of valuation prescribed under Schedule III to Wealth Tax Act, whereas he has arrived at the value on the basis of market value which is incorrect - HELD THAT:- In this case, on perusal of facts, we find that although assets have been distributed among the family members in pursuant to MOU cum Deed of family settlement, but the contention of the assessee before the Hon’ble High Court is that he did not receive said assets. We, therefore, considering facts and circumstances of the case, are of the opinion that AO as well as CWT(A) were erred in assessing the value of residential house property and diamonds for taxation for the impugned assessment years without taking into account the dispute pending before Hon’ble High Court of Madras.
Residential property at Mc Nichols Road, the claim of assessee that said property was used for own residence and consequently outside the purview of definition of asset as defined u/s.2(ea) of the Act. Although, the assessee claims that said property was used for own residence, but no evidence has been placed before the authorities or even before us to prove that said property was used for own residence. No doubt, in case the property is used for own residence then the same is exempt u/s.5(1)(vi) of the Act. But, it is for the assessee to prove with necessary evidence that said asset is used for own residence. In this case, the assessee has not placed any evidence on record to justify his stand. Therefore, we are of the considered view that the issue needs to be reexamined by the AO in light of claim of the assessee that said property is used for own residence. Appeals filed by the assessee allowed for statistical purpose.
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2021 (1) TMI 973
Wealth tax assessment - additions in the valuation of jewellery - gross weight of jewellery as on 31.02.2012 declared in the wealth tax return was different from the gross weight of jewellery as on 31.03.2013 - HELD THAT:- As during the course of search and subsequent opening of lockers the jewellery of all the family members were mixed up and valued, therefore, for the adjudication of this quarrel, we have considered the gross weight of jewellery of all the family members taken together as declared by them in their respective Wealth Tax Returns and as found at the time of search.
No suppression in the valuation of jewellery and, therefore, enhancement made by the CIT(A) on this account is bad in facts and deserves to be deleted. We direct the WTO to delete the impugned enhancement in the value of jewelery from the hands of all the appellants.
Enhancement in the valuation of property - Denial of exemption u/s.5(vi) of the Wealth Tax Act - It would be pertinent to mention here that the claim of exemption is being allowed to the appellants in earlier assessment years and it is only in the orders under consideration, the CIT(A) thought that the appellants are not eligible for the claim of exemption. The basis of reasoning given by the CIT(A) is that D-6/5, Vasant Vihar and E-27, Vasant Marg, New Delhi consists of more than one residential unit and, therefore, the appellants are eligible for exemption for only one residential unit. We find that D-6/5, Vasant Vihar and E-27 Vasant Marg, New Delhi are multi storey building. At this point we would like to refer to the decision of the Hon’ble Kerala High Court in the case of CIT Vs. Nazima Nizam 64 taxman 375 wherein the Hon’ble High Court allowed the exemption in respect of assessee’s building which consisted four shop rooms.
In the property D-6/5, Vassant Vihar, Lata Goyal is the owner of ground floor and first floor belongs to Monila Goyal and second floor belongs to Lata Goyal and Kanti Kumar Goyal E-27, Vasant Marg is owned by Lata Goyal. Lata Goyal has claimed exemption in respect of E-27, Vasant Marg and has included the value D-6/5, Vasant Vihar in her Wealth Tax Return.
Treating a multi floor house as separate units is incorrect and, therefore, denial of the claim of exemption by CIT(A) thereby enhancing the value of property is bad in law and deserves to be deleted.
Direct the WTO to delete the impugned addition of enhancement in the valuation of property from the hands of the appellants.
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2021 (1) TMI 972
Classification - taxability - provision of hostel accommodation along with food facility to the students wherein consolidated amount is charged from the students - composite supply or principal supply - recovery of entire charge from the students - exemption from GST under Sr. No. 14 of the CGST (Rate) Notification No. 12/2017 dated 28.06.2017 as amended if the charges per day is less than ₹ 1000/- - taxability on supply of hostel accommodation along with food facility - CBEC Flyer No. 40 dated 01.01.2018.
HELD THAT:- In the instant case the appellant is supplying various services like supply of food, TV in dining hall, Playroom, Gym, Housekeeping of entire hostel premises, Room cleaning and Washing/ dry-cleaning of bed sheets & linen of rooms along with Hostel Accommodation service. The supply of various other services as detailed above with Hostel Accommodation service is not naturally bundled in normal course of business. Each service is an independent service and can be supplied separately. It is obvious that a person can live on the hostel without availing other services like food, TV, gym, etc; but to make ones stay more comfortable, the said ancillary services are availed by him - Rajasthan Authority’ of Advance Ruling has held that naturally bundled services are those services wherein one of the services is the main service and the other services combined with such service are in the nature of incidental or ancillary services which help in better enjoyment of a main service. If current nature of supply of services is tested based on above factors, it can be ascertained that the provision of hostel accommodation could be a principal supply but ancillary services like food, gym, housekeeping, play room, cannot be said to arise naturally with the principal service of hostel accommodation and therefore are not bundied naturally with principal supply.
Rajasthan Authority of Advance Ruling has placed reliance on the ruling of West Bengal Authority for Advance Ruling in the case of Sarj Educational Centre [2019 (2) TMI 1605 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL] involving similar facts and circumstances, wherein the applicant was engaged in supplying food and other services, etc and it was held that they are not naturally bundled with the lodging service. All these components are independent of each other. The said ruling has been upheld by the Appellate Authority of Advance Ruling of West Bengal.
There are no infirmity in the Advance Ruling pronounced by Rajasthan Authority of Advance Ruling - the Advance Ruling pronounced by the Rajasthan Authority of Advance Ruling upheld - appeal dismissed.
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2021 (1) TMI 971
Raid - validity of search and seizure proceedings - Section 67 of the CGST Act - simultaneous proceedings of investigation when audit in progress - attachment of Bank Accounts - allegation of harassment and high-handedness - HELD THAT:- We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution of India.
SLP dismissed.
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2021 (1) TMI 970
Constitutional validity of the proviso to Section 50 of the Central Goods and Services Tax Act, 2017 - interest on delayed payment of tax - HELD THAT:- Let Notice be issued to the respondents, returnable on 11.02.2021. The respondents shall be served directly through email. In the meantime, Mr. Choksi, the learned counsel appearing for the writ applicants shall furnish one set of entire paperbook to Mr. Devang Vyas, the learned Addl. Solicitor General of India, so that by the next returnable date, Mr. Vyas can seek appropriate instructions in the matter.
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2021 (1) TMI 969
Provisional attachment of Bank Account - Section 83 of the CGST Act, 2017 - HELD THAT:- The Bank Account has been ordered to be provisionally attached under Section 83 of the CGST Act, 2017. This Writ Application need not be adjudicated on merits as the impugned order of provisional adjudication has outlived its statutory life. As per Section 83 of the Act, other provisional attachment shall cease to have effect after the expiry of period of one year from the date of order made under sub-Section (1). The impugned order is dated 24.10.2019. The period of one year expired way back in October 2020 - In such circumstances, it can be said that there is no provisional attachment of Bank Account in existence or in operation as on date.
This writ application disposed off.
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