|
Advanced Search Options
Case Laws
Showing 401 to 420 of 1346 Records
-
2021 (1) TMI 947
TP Adjustment - determination of Arm's Length Price(ALP) in respect of international transaction of rendering of Software Development Services by the Assessee to its Associated Enterprise (AE) - Assessee is a company engaged in the business of providing contract Software Development Services (SWD Services) - transaction of rendering software development services by the Assessee to its AE was a transaction with an Associated Enterprise (AE) and was therefore an international transaction - HELD THAT:- Genesys International Corpn. Ltd., Infosys Ltd., Larsen and Toubro Infotech Ltd. and Persistent Systems Ltd.be excluded from the final list of comparable companies for the purpose of arriving at the arithmetic mean of comparable companies for the purpose of comparison with the profit margins.
Comparable company ICRA Techno Analytics Ltd. exclusion of the said company was sought by the Assessee before CIT(A) on the ground of functional comparability. CIT(A) has however excluded this company on the basis of export turnover filter. It is also the claim of the Assessee that the related party transaction in the case of the aforesaid company was more than 25%. As far as the request of the Revenue that the export sales to turnover of this company is 92% and therefore passes the test of export turnover filter being at least 75% or more of the total turnover. We are of the view that the comparability of this company has not been properly analyzed and hence the comparability of this company is set aside to the TPO/AO to be considered afresh on both the functional filter as well as RPT and export turnover filter.
Exclusion of Mindtree Ltd. from the list of comparable companies - Assessee has no objection to its inclusion in the list of comparable companies of the TPO. Hence, this company is directed to be included in the list of comparable companies.
Exclusion of M/s. Datamatics Global Services Ltd. - Assessee sought exclusion of this company before CIT(A) on the ground that this company is functionally different from that of the Assessee. CIT(A) has however in his order excluded this company on the basis that this company's export sales are 58% of the total turnover and therefore the company fails the application of export turnover filter. As far as the request of the Revenue that the export sales to turnover of this company is 98% and therefore passes the test of export turnover filter being at least 75% or more of the total turnover. After hearing the rival submissions, we are of the view that the comparability of this company has not been properly analyzed and hence the comparability of this company is set aside to the TPO/AO to be considered afresh on both the functional filter as well as export turnover filter.
Exclusion of M/s. Sasken Communication Technologies Ltd. CIT(A) excluded this company after finding that this company was functionally different. Comparability need not be exact and that the requirement of law is only similar companies. We are of the view that the functional comparability not having been disputed, the plea taken by the revenue deserves to be rejected.
Treatment of foreign exchange gain as part of the operating profit of the Assessee - HELD THAT:- As decided in own case [2019 (8) TMI 350 - ITAT BANGALORE] we feel it proper to restore the matter back to the file of AO/TPO for fresh decision with the direction that if it is found that foreign exchange fluctuation gain/loss of the tested party i.e. of the assessee or of the comparable companies is in respect of the current year's turnover then the same should be considered for TP analysis but if such gain/loss is not in respect of current year's turnover, then the same should be ignored in case of both i.e. the tested party and of the comparable companies. In case the data in this regard regarding comparable company is not made available by the assessee, then it should be presumed that such foreign exchange gain/loss for comparable company is not in respect of current year's turnover because generally, the accounting of foreign exchange gain/loss is considered in the sales only if such gain/loss has been received in the year of sale itself and only when such gain/loss is received and accounted for in a later year then only the same is accounted for separately as exchange fluctuation gain/loss.
-
2021 (1) TMI 946
Disallowance of development charges - applicability of provisions of section 40A(3) - In the absence of details relating to development expenses, the A.O. had disallowed the above said amount in assessment year 2010-11 - HELD THAT:- Applicability of provisions of sec. 40A(3) could well be appreciated only if the documentary evidences were also examined, besides the ledger extracts. We have earlier noticed that the assessee has not furnished documentary evidences before A.O. and hence the applicability of provisions of section 40A(3) of the Act was also not actually examined by the A.O.
The expenditure claimed by the assessee formed part which was incurred by the assessee during the year relevant to the assessment year 2010-11. As noticed earlier, the assessee has claimed proportionate expenditure relating to the whole of sites affected by it. Since the assessee has claimed the expenditure during the year under consideration, it is the duty of the assessee to prove the expenditure before the A.O. by furnishing relevant documentary evidences. Since the Ld. CIT(A) has also not examined the documentary evidences, we are of the view that this issue requires fresh examination at the end of the A.O. with regard to both the issues, viz., the genuineness of the expenses and applicability of section 40A(3) of the Act.
Disallowance of payment for purchase of land u/s. 40A(3) - A.O. noticed from the details furnished by the assessee that the assessee has paid a sum by way of cash towards purchase of land and since the land formed trading stock of the assessee, the A.O. disallowed the above said payment by invoking the provisions of section 40A(3) - HELD THAT:- We noticed earlier that the assessee did not offer any explanation before A.O. with regard to the payment made by way of cash towards purchase of land. However, before Ld. CIT(A), the assessee has taken support of provisions of rule 6DD and the Ld. CIT(A) has also granted relief without properly examining the claim of the assessee. Under these set of facts, we are of the view that this issue also requires fresh examination at the end of the A.O. Accordingly, we set aside the order passed by Ld. CIT(A) on this issue and restore the same to the file of the A.O. for examining the claim of the assessee afresh.
Appeal filed by the revenue is treated as allowed for statistical purposes.
-
2021 (1) TMI 945
Addition u/s 68 - unexplained loan received - HELD THAT:- In order to prove the identity, genuineness and creditworthiness of the cash creditor Rimsha Maheswhari, assessee had been provided sufficient opportunity. Inspite of that assessee has only provided copy of confirmation letter and copy of bank account which too is not legible. There is no evidence to show the Permanent Account Number, identity details, details of bank account, Income Tax Return and salary certificate. The copy of bank statement shows that assessee is receiving salary of ₹ 21,666/- per month but assessee has been unsuccessful to provide the details of other credit entries. In this situation we are of the considered view that the assessee has failed to discharge its onus to prove the identity and creditworthiness of the cash creditor. In these given facts and circumstances of the case we find no reason to interfere in the finding of Ld. CIT(A) confirming the addition for unexplained loan received from Rimsha Maheshwari.
Additional income surrendered in the statement given u/s 132(4) - HELD THAT:- Impugned addition made by the Ld. A.O was purely based on the statement given u/s 132(4) of the Act and there was no reference to any incriminating material found during the course of search which could support the impugned addition, we thus delete the addition of ₹ 25,00,000/- for Assessment Year 2013-14 and ₹ 3,00,00,000/- for Assessment Year 2014-15 and set aside the finding of both the lower authorities and accordingly allow Ground No.3 raised in assessee’s appeal.
Undisclosed investment u/s 69B of the Act based on the Departmental Valuation Officer Report - HELD THAT:- Assessee has maintained regular books of accounts which are not found to be incomplete or unreliable and also have not been rejected by the Ld. A.O and secondly Valuation was done of the incomplete project which has been valued not on the basis of local price but on the basis of Delhi rates which are universally accepted on higher side. Therefore since no defects were pointed out in the books of accounts regularly maintained by the assessee and are duly audited and no incriminating material was found in the search to show that unaccounted investment in the building project has been made, addition made purely on the basis of Departmental Valuation Report, we find no reason to interfere in the finding of Ld. CIT(A) who was rightly deleted the addition for the alleged undisclosed investment u/s 69B.
Claim of set off income against the additions made u/s 69B - HELD THAT:- Assessee is entitled to claim deduction of any expenses which has been deemed to be its income u/s 69B. Accordingly the AO is directed to provide deduction of the addition made u/s 69B towards unexplained expenditure incurred by the assessee.
Addition of undisclosed investment in purchase of land - HELD THAT:- Addition was made on the basis of cash deposits in the bank account of seller who do not response to the summons of the department nor ever appeared before the Ld. A.O so as to explain the cash deposits in her account. Under these circumstances we find no justification in the observation of the Ld. A.O that the cash deposit of ₹ 10,00,000/- in the account of seller on 10.8.2010 is in connection with the land sold vide Registry deed in favour of the assessee on 24.02.2010 was paid by the assessee. In these given facts the deposit of cash in the account of the seller cannot be connected with the assessee without any material on record to suggest such transaction. Therefore Ld. CIT(A) has rightly appreciated the facts and deleted the addition.
Unexplained investment u/s 69 - HELD THAT:- Addition was the price of ₹ 1 crore per acre stated by the seller which was subsequently revised/rectified in the remand proceedings by the seller stating at ₹ 1 crore per hectare and the same if applied to the transaction under consideration and the same will arrive at 2.59 crores which is less than the actual purchase consideration paid by assessee at ₹ 2.91 crores (approx.) and thus do not call for any addition for unexplained investment in the purchase of 2.59 ha of land at Village Bagli by the assessee. Since there is no inconsistency in the finding of Ld. CIT(A) we uphold the same and dismiss Revenue’s Ground No.1 for Assessment Year 2012-13.
Unexplained investment in purchase of land at village Bagli - HELD THAT:- In the unsigned draft agreements is the basis and Ld. A.O had applied the higher rate mentioned in the seized unsigned two draft agreements i.e. 1.12 crores per acre and completely ignored the rate of ₹ 20,00,000/ - per acre mentioned in the other two draft agreements. Ld. A.O has also ignored the actual registered sale deed showing the purchase of land in question at a price in between ₹ 40,00,000/ - and ₹ 45,00,000/-per hectare. Ld. A.O has failed to bring on record any other documentary evidence to support the fair market value of 1.12 crores adopted by him. In these facts and circumstances of the case we find no justification in the action of the Ld. A.O in making the addition for undisclosed investment merely on the basis of unsigned draft agreements which also have not been given equal weightage and the Ld. A.O. has merely picked those documents showing higher purchase consideration which ID our view is not justified. Thus the Ld. CIT(Al has rightly deleted the addition.
Addition on account of disallowance u/s 40(A) - HELD THAT:- Genuineness of the payment were not doubted and there is no iota of evidence to show that the assessee wanted to evade any tax liability and more so the transactions have been carried out before the Registering authority of State Government and impugned cash payments are part of the consideration appearing in the registered deed. We thus respectfully following the judicial precedents referred herein above find no inconsistency in the finding of Ld. CIT(A) deleting the disallowance u/s 40A(3) of the Act for the alleged cash payment u/s 40A(3) of the Act and the same is upheld.
Addition u/s 68 of the Act for unexplained unsecured loan received from Non Resident Indian Shri Rajesh sadhwani - HELD THAT:- From perusal of the finding of Ld.CIT(A), various documentary evidences filed by the assessee to support the identity, genuineness and creditworthiness of Shri Rajesh Sadhwani which are in itself sufficient enough to satisfy that the alleged amount of ₹ 2,45,OO,OOO/- should not have been treated as unexplained cash credit and further in view of the decision of this Tribunal relied by Ld. CIT(A) in the case of Umesh Electricals Vis ACIT 2011 (2) TMI 1584 - ITAT AGRA] and Aseem Singh V/s ACIT [2011 (9) TMI 1209 - ITAT INDORE] we are satisfied with the finding of Ld. CIT(A) and of the considered view that since the assessee has furnished all the required details to prove the identity of the lender, genuineness of the transaction and creditworthiness of the lender i.e. Shri Rajesh Sadhwani there is no justification at the end of the Ld. A.O in making the addition for unexplained cash credit u/s 68.
-
2021 (1) TMI 944
CIT-A dismissing the appeal in limine on the ground of delay of 21 days in filing of appeal - HELD THAT:- In the present case it is noticed that the Ld. CIT(A) dismissed the appeal of the assessee in limine for the reasons that there was delay in filing the appeal before him. In this regard, the explanation of the assessee is that due to theft in his shop, he remained busy in police enquiry, in support of his claim he furnished the additional evidences which were not before the Ld. CIT(A).
The said evidences are a cutting of the news paper wherein the news relating to the theft in the shop of the assessee is published and the copy of the FIR. It is also noticed that the Ld. CIT(A) dismissed the appeal of the assessee in limine for the reasons that the assessee could not furnish any documentary evidence in support of his claim. In the present case, the delay in filing the appeal before the Ld. CIT(A) occurred due to the involvement of the assessee in police enquiry relating to theft in his shop and his illness. Referring to explanation of the assessee and the principle of natural justice deem it appropriate to set aside this case back to the file of the Ld. CIT(A) to be adjudicated afresh - Appeal of the Assessee is allowed for statistical purposes.
-
2021 (1) TMI 943
Estimation of income - Bogus purchases - HELD THAT:- It is not in dispute that the assessee should have made purchases from the grey market in order to have some savings in indirect taxes and incidental profits thereon. We find that this Tribunal in series of decisions by placing reliance on the decision in the case of Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT ] had categorically held that profit percentage of disputed purchases for the persons engaged in similar line of industry in which assessee is engaged in should be reasonably estimated at 12.5% of value of disputed purchases. Respectfully following the same, we direct the ld. AO to restrict the disallowance made on account of bogus purchases to 12.5% of value thereon. Accordingly, the ground raised by the assessee are partly allowed.
-
2021 (1) TMI 942
Addition u/s 68 - unsecured loans as unexplained cash credits - interest therein as unexplained expenditure u/s. 69C - HELD THAT:- When the assessee files all necessary evidences on record before the Assessing Officer, then mere failure of the creditor party(ies) to appear cannot form the so basis to invoke sec. 68.- Keeping in mind the detailed evidence as well as judicial precedents, we hold that once the assessee has discharged its onus on identity, genuineness and creditworthiness of running account & discharged its onus qua credit side of loan and interest expenditure thereupon before the AO, both the lower authorities have erred in law and on facts in treating the same as unexplained cash credits & unexplained expenditure u/s. 68 & 69C respectively. These two additions made u/s. 68 & 69C of the Act are directed to be deleted therefore. - Decided in favour of assessee.
-
2021 (1) TMI 941
Additions u/s 68 - unsecured loan from the Director - HELD THAT:- Since the assessee has only submitted bank statement and return of income of the Director AO came to conclusion that assessee has not proved identity, credit worthiness and genuineness of the transaction. AO himself observed that this unsecured loan is from director of the company and all the transactions are through banking channel. Therefore, identity and credit worthiness is already proved considering the fact that these transactions were carried out throughout the year and it is accepted fact that Mr. Vivek Surana is director of the assessee’s company.
Genuineness of the transaction, there is no bar in the I. T. Act that assessee cannot deal or take unsecured loan from the director. Disallowance u/s 68 is far fetched and the loan transaction with Director cannot be termed as non-genuine. Therefore, we are inclined to accept the findings of Ld. CIT(A). Accordingly, ground no. 1 is dismissed.
Disallowance of trade creditors - assessee could not bring them to AO in person - HELD THAT:- We notice that these are trade creditors and also two directors accounts are involved. We considered the findings of the Ld CIT(A) carefully and found that trade creditors M/s Divya Jewels, M/s Jewel Diamond and M/s Kingstar has no business transaction during this assessment year and these are outstanding balances of previous assessment year. Since these are transactions of earlier AY and its settlements were made in the subsequent AY, in our view there is no scope for disallowance u/s 68. Therefore, we are inclined to accept the findings of Ld CIT(A).
With regard to M/s Renisha Impex and Varun Gems, it is noticed that these parties are having regular business transactions and without any findings on transactions with them as bogus or accommodation entries, there is no scope for AO to disallow these transactions. Therefore, we are inclined to accept the findings of Ld CIT(A).
With regard Mr Girish Agarwal and Poonam Agarwal, these are directors and their accounts shows regular salary payments and tax deductions. Since these are directors, there is issue of identity and genuineness issues. Accordingly, we are inclined to accept the findings of Ld CIT(A) and accordingly grounds raised by revenue is dismissed.
Bogus purchases - There is no findings by the AO that these are bogus transaction or findings from any other external agencies that these party is involved in providing accommodation entries to assessee. It is only presumption made by the AO simply because Kalash Enterprises is associated with the Rajendra Jain Group. Unless there is specific finding that these are bogus entries, AO cannot presume and disallow the same. Accordingly, we are inclined to accept the findings of Ld CIT(A). Accordingly, Ground raised by the revenue is dismissed. Appeal filed by the revenue is dismissed.
-
2021 (1) TMI 940
Seizure of export goods - overvaluation in exports - fraudulent availment of duty drawback and other export incentives by some exporters including the applicant - HELD THAT:- Even the applicant had conceded that if necessary it would furnish bank guarantee to the extent of 20% of the duty drawback amount which would accrue on export of the goods - That being the position we modify the provisional release order dated 31.12.2020 by directing the respondents to release the goods of the applicant for export subject to submission of bond equivalent to declared value of goods and submission of bank guarantee to the extent of 20% of the duty drawback payable.
On such compliance respondents to release the goods of the applicant forthwith within 48 hours from the date of furnishing such bond and bank guarantee.
Regarding seizure of computers etc. we find that those were seized on 07.12.2020 and continues to be retained by the respondents. Respondents are therefore directed to release the electronic goods seized from the residential and business premises of the applicant vide panchanama dated 07.12.2020 immediately after making clone copies therefrom.
Application disposed off.
-
2021 (1) TMI 939
Contempt petition - guilty of contempt - specific performance of family settlement - oppression and mismanagement - allegation is that the high value contracts were executed by issuing multiple cheques under the value of ₹ 10 lakhs, though, the contract amount was much more - vital information with regard to management of the Company was withheld - unilateral settlement with trade union - appointment and promotion of senior executives - Sections 397, 398 and 403 of the Companies Act, 1956 - HELD THAT:- Perusal of Section 397 would reveal, that a member of a Company is entitled to apply to the CLB complaining that the affairs of the Company were being conducted in a manner prejudicial to the public interest or in a manner oppressive to any member or members including anyone or more of themselves, for an order under the said section. The only rider is that such a Member should have a right to do so by virtue of Section 399. Under sub-section (2) of Section 397, if the CLB was of the opinion, that the Company’s affairs are being conducted in a manner prejudicial to the public interest or in a manner oppressive to any member or members and that to wind up the Company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground, that it was just and equitable that the Company should be wound up; it was entitled to make such order as it thinks fit, with a view to bringing to an end such matter complained of - It could thus be seen, that any member of a Company is entitled to make an application to the CLB complaining that the affairs of the Company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interest of the Company and the CLB is empowered to make such order as it thinks fit, with a view to bring to an end the matter complained of.
A similar provision contained in Section 398, enables the members of a Company to complain, that the affairs of the Company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to interest of the Company. It also enables a member to complain with regard to material change which has taken place in the management and control of the Company and by reason of such change, it is likely that the affairs of the Company will be conducted in a manner prejudicial to the public interest or to the interest of the Company. Again, the only rider is, that such a member must have a right to apply by virtue of Section 399. Perusal of sub-section (2) of Section 398 would further reveal, that if such an application was made under sub-section (1) of Section 398 and if the CLB was of the opinion, that the affairs of the Company are being conducted as aforesaid, the Tribunal may, with a view to bringing to an end or preventing the matter complained of or apprehended, is entitled to make such orders as it thinks fit - It could thus be seen, that the respondents had legitimately approached the CLB invoking its jurisdiction under Sections 397, 398 and 403 of the Companies Act. The learned CLB had also passed interim orders in exercise of its powers under Section 403 of the Companies Act. The petitioner had approached this Court immediately after the order dated 10th April 2008, was passed by the CLB by way of present contempt petition. Along with the contempt petition, IA No. 1 of 2008 was also filed for stay of the order passed by CLB. Subsequently, another IA No. 2 of 2008 was also filed seeking stay of the proceedings before CLB and the communications/directions passed by the Facilitator. However, no orders have been passed by this Court on the said IAs.
In the present case, undisputedly, the respondents were entitled to invoke the jurisdiction of the CLB under Sections 397, 398 and 403 of the Companies Act. The CLB has passed the order on 10th April 2008 appointing a Facilitator and further passed order dated 28th April 2011, enhancing the powers of the Facilitator. Perusal of the orders passed by this Court dated 21st July 2009 and 29th July 2009, would reveal, that though this Court had appointed independent Director, it is clarified, that the independent Director’s functioning would not come in the way of the functioning of the Facilitator. On the contrary, by order dated 29th July 2009, this Court observed, that the appointment of Shri Ranina as independent Director would facilitate the functioning of the Facilitator, appointed by the CLB - It can thus be seen, that this Court has held, that the contempt proceeding is not like an execution proceeding under the Code of Civil Procedure. It has been held, that though the parties in whose favour, an order has been passed, is entitled to the benefits of such order, but the Court while considering the issue as to whether the alleged contemnor should be punished for not having complied with and carried out the directions of the Court, has to take into consideration all facts and circumstances of a particular case. It has been held, that is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience of any judgment, decree, direction, order, writ or other process of the Court. It has been held, that before punishing the contemnor for non-compliance of the decision of the Court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction, writ or other process but should also be satisfied that such disobedience was wilful and intentional.
In the present case, the petitioner has failed to make out a case of wilful, deliberate and intentional disobedience of any of the directions given by this Court or acting in breach of an undertaking given to this Court. On the contrary, we find that the respondents had taken recourse to the legal remedy available to them under the statutory provisions. No doubt, Mr. Rohatgi has argued, that the proceedings before the CLB are itself without jurisdiction.
Though the counsel for the present petitioner had raised an issue that without deciding on the maintainability of the petition, the interim order could not be passed, the CLB observed, that under Sections 397 and 398 of the Companies Act, it is well settled, that only if the maintainability is challenged either in terms of Section 399 or jurisdiction of the CLB, challenges on other grounds have to be considered along with the merits of the case. It further observed, that in the present case, it was admitted fact, that the petitioner qualified under Section 399 of the said Act and that the CLB has jurisdiction to deal with the petition under Sections 397 and 398 of the Act. It further observed, that in the proceedings under Sections 397/398, it is the interest of the Company which is paramount. It observed, that it was quite evident from the various annexures enclosed with the petition, that due to differences among the Directors, many operational issues concerning the management of the Company like payment of salary/wages, payment to suppliers etc. were pending, resulting in agitation by the employees and irregularity in supplies - it should not be construed, that we have held that the proceedings under the CLB were maintainable in law. Since the proceedings are pending final adjudication, the parties would be at liberty to raise all issues available to them including the issue of jurisdiction.
The present contempt petition is without any merit and deserves to be dismissed, and is accordingly dismissed.
-
2021 (1) TMI 938
Seeking to dispense with convening a meeting of the Equity Shareholders of the Transferor Company for the purpose of considering the proposed Scheme - Sections 230 to 232 of the Companies Act, 2013, R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - Various directions regarding issuance of various notices also issued - application disposed off.
-
2021 (1) TMI 937
Fraudulent or wrongful trading with an intent to defraud the creditors of the Corporate Debtor - Section 66 of IBC Code - conduct and liability of Respondent No.1 to repay the assets and benefits of the Corporate Debtor which has wrongfully been received by Respondent - HELD THAT:- Reference is made to the decision of Hon'ble NCLAT in the case of Vijay Pal Garg & Ors vs Pooja Bahry (Liquidator of Gee Ispat Private Limited) [2020 (4) TMI 420 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein the Hon'ble NCLAT was dealing with identical facts of an Application filed by R Punder section 66 and it was found that the records and accounts of the Corporate Debtor have been falsified and eventually proceeded to trigger an investigation under section 213 of the Companies Act 2013.
Thus in view of the judgement, it becomes clear that Respondent No.1 is clearly covered u/s of 66(1) and Respondent 2 and 3 are also covered u/s. 66(2)(a) and 66(2)(b) of the Code.
The Bench in view of the view that R1 i.e. Royal India Corporation Limited through various fraudulent transactions and by way of fudging the Books of Accounts in connivance with the R2 and R3 have defrauded the Corporate Debtor company to the extent of ₹ 1,19,08,05,762/-. This includes the clear admitted dues of ₹ 31.01 crore - The Bench directs that the total amount of ₹ 1,19,08,05,762/- be returned by R1 into the Corporate Debtor’s account within a period of 7 days from the pronouncement of this Order.
Application allowed.
-
2021 (1) TMI 936
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Respondent has failed to comply with the order passed by the Hon'ble K-RERA and are in default of financial debt - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that I&B Code, 2016 is not intended to be substitute to a recovery forum.
In the instant case, it is seen that the Petitioners have already obtained an order from the relevant forum under the RERA Act and the same can be executed before any relevant forum. This Tribunal cannot be used as a recovery forum when orders of the K-RERA or any other forum are not complied with. Merely because the other courses may be cumbersome, as pleaded, cannot be a ground for taking recourse to the I&B Code when no case is even otherwise made out for admission, since the Petitioners do not admittedly meet the minimum threshold of 10% etc. of Financial Creditors of the same class. For this reason, the Ld Counsel for the Petitioner's plea that liberty may be granted to file a fresh petition also cannot be acceded to. The petition is clearly an attempt at forum shopping and deserves to be dismissed.
Petition dismissed.
-
2021 (1) TMI 935
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - debt, limited by time or not - Financial Creditors or not - debt due is a Financial Debt or not - HELD THAT:- In view of the law laid down by the Hon'ble Supreme Court in ITC LIMITED VERSUS BLUE COAST HOTELS LTD. & ORS. [2018 (3) TMI 932 - SUPREME COURT], we hold that the WhatsApp communication dated 23-5-2019 annexed by the Financial Creditor along with the rejoinder constitutes an acknowledgement of liability, where the debtor who sent such a message has no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure and falls within the meaning of Section 18 of the Limitation Act, 1963. Therefore, this Tribunal holds that the Application filed by the Financial Creditor is within the limitation period.
From the definition of Financial Creditors, Section 5(8) of the 'I&B Code', it is clear that a 'financial debt' is a debt along with interest which is disbursed against the consideration for the time value of money and may include any of the events enumerated in sub-clause (a) to (i). Therefore, this Tribunal is to see whether the amount paid by the Applicants to the Corporate Debtor, fulfil the other condition of "disbursement against consideration of time value and money", in order to come within the definition of "Financial Creditor."
There is a 'Financial Debt' as defined in Section 3(11) of IBC; there is a default within the meaning of Section 3(12) of IBC. Therefore, the application filed by the Financial Creditors is complete in all respects as required by the law. Therefore, the default stands established and there is no reason to deny the admission of the application. Hence, this Adjudicating Authority Admits this Petition and orders initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor - Application admitted - moratorium declared.
-
2021 (1) TMI 934
Seeking directions to dismiss the proceedings in the instant matter since no quorum has been reached in accordance with Section 408 and 410 of Companies Act, 2013 - HELD THAT:- A bare reading of the provisions of Section 419(3) of the Companies Act as well as the order of the NCLT, Principal Bench, which has been issued with the approval of Hon'ble President, makes it clear that even though the Bench of NCLT consists of two members, it shall be competent for the Members of the Tribunal authorised in this behalf to function as a Bench, by a Single Judicial Member and exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may by general or special order specify. In regard to constitution of special Bench for NCLT, Kochi the Hon'ble President has issued the order under Section 419(3) of the Companies Act, 2013 authorising the Judicial Member to function as such. It may also be mentioned that by the aforesaid order, no direction is issued that the Special Bench of Member (Judicial) is not empowered to take up cases under the I.B. Code, 2016.
The contentions raised by the applicant herein that a Single Member Bench cannot hear the IBC matters has no foots to stand and is liable to be dismissed - Application dismissed.
-
2021 (1) TMI 933
Permission for withdrawal of petition - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Since the Company Petition is not yet admitted, and the Petitioner has itself filed the above joint memo praying for withdrawal of the the instant Company Petition, we are inclined to permit the Petitioner to withdraw the instant Company Petition.
Petition is hereby disposed of as withdrawn by granting liberty to the Petitioner to file a fresh petition in case of non-adherence to the agreed terms of payment by the Corporate Debtor.
-
2021 (1) TMI 932
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor or not - pre-existing dispute or not - HELD THAT:- After the reply of Corporate Debtor, Operational Creditor has filed its rejoinder, in its rejoinder the Operational Creditor states that, on 27-10-2018, the Operational Creditor issued a Demand Notice against the Corporate Debtor which the Corporate Debtor responded to vide its response letter dated 6-11-2018. The Corporate Debtor issued a show cause notice dated 29-10-2018 after almost 3 months of termination of the Consultancy Agreement of the Operational Creditor w.e.f 4-8-2018 and also replied to the Demand Notice on 6-11-2018 creating a false/moonshine dispute to avoid the payment of the operational debt due to the Operational Creditors.
The Operational Creditor further states that, aforementioned handover is being portrayed by the Corporate Debtor as a moonshine dispute whereas this has no relation with the contract, the 6 months notice period and even the termination of the Operational Creditor's contract which was terminated for convenience and not misconduct - In M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] the Hon'ble Supreme Court held that pre-existing dispute is the dispute raised before demand notice or invoices was received by the 'Corporate Debtor'. Any subsequent dispute raised while replying to the demand notice under section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute.
It is made clear that any observations made in this order shall not be construed as an expression of opinion on the merit of the controversy and the right of the applicant before any other forum shall not be prejudiced on account of dismissal of the instant application - application dismissed.
-
2021 (1) TMI 931
Seeking to direct the Resolution Professional to accept the claim of the Applicant under the category of Financial Creditor and reconstitute the Committee of Creditors by including the name of Applicant - nature of the debt - Financial Debt or Financial debt - HELD THAT:- In the instant case, the amount in claim is arising out of the judgment of XIII Additional District and Sessions Judge cum Commercial Court, Ranga Reddy District, Hyderabad and the said judgment arose out of the issue regarding payment of entire amount as advance by the Applicant towards the purchase orders placed with the Corporate Debtor and further on account of non-supply of goods.
The transaction entered into between the Applicant and Respondent squarely falls within clause 2(c)(xviii) supra and therefore the Commercial Court had jurisdiction over disputes arising out of such commercial transactions. As a result, the above said Court could entertain the claim of the Applicant herein and duly adjudicated upon the same. In fact, if the said transaction was not a commercial transaction but was financial in nature, the Commercial Court could not have adjudicated upon the same. Therefore, it is obvious that the claim made by the Applicant herein pertains to a commercial transaction between the parties - It is an admitted fact that pursuant to the agreement in the form of purchase order the Applicant has paid the money as an advance for supply of goods and not as a disbursement of debt for time value of money. In the Purchase Order between the Appellant and the Respondent, nowhere it is mentioned that the amount paid by the Appellant to the Respondent will be repayable by the Respondent along with interest over a period of time in a single or series of payments in future.
The Appellant has not disbursed any money against the consideration for the time value and hold that the claim of the Appellant is not a Financial Debt within the meaning of section 5(8) of the Code - this Adjudicating Authority does not find any infirmity in the decision of the RP.
Application dismissed.
-
2021 (1) TMI 930
Maintainability of application - HELD THAT:- No explanation has been offered for inaction between 17.08.2017 until 10.02.2020 despite the tax amount involved is over ₹ 24 crores.
List the matter after two weeks.
-
2021 (1) TMI 929
Maintainability of application - alternative remedy of preferring a statutory appeal - Provisional Release of detained goods alongwith Truck - Section 129 and 130 of the GST Act - HELD THAT:- As we are relegating the writ applicants to avail an alternative remedy of preferring a statutory appeal against the final order of confiscation, the request for provisional release of the goods and the vehicle pending final disposal of the appeal also should made before the appellate authority. In this regard, we may say that the writapplicants may prefer an application under Section66(6) of the Act for the provisional release of the goods and the vehicle. If any such application is filed, then the appellate authority shall take it out for hearing and may consider releasing the goods and the vehicle on the writ applicants depositing the amount towards the penalty and fine in lieu of the confiscation. We may clarify that according to Mr. Parikh, the amount of towards the tax has already been deposited. If the writ applicants agreed to deposit the entire amount, then in such circumstances, the appellate authority shall provisionally release the goods and the vehicle pending the final disposal of the appeal.
This writ application stands disposed of.
-
2021 (1) TMI 928
Stay of pre-deposit - seeking direction to the 1st respondent to entertain the appeal filed by the petitioner without insisting on further pre-deposit of amount - delay in filing of appeal before the Commissioner (appeals) - HELD THAT:- Though there is appear to be a deficit in pre-deposit of amount in so as far as the Order in Original No.14/2017 is concerned as the report filed, it is noticed that the petitioner has paid amounts in excess in their appeal against the order in Original Nos.15 & 16/2017 for a sum of ₹ 74,825/- and ₹ 85,479/-. Thus, there is excess payment of ₹ 1,60,304/- by the petitioner which amount can be allowed to be adjusted against the amount of pre-deposit in the petitioner's appeal against Order in Original No.14/2017 dated 10.2.2017 - The impugned communication dated 03.05.2017 also states that the appeal has been filed with a delay of one day. However, there is no explanation forthcoming from the petitioner on the same.
The petitioner is given liberty to file appropriate applications for condoning the delay or in the alternative, give their explanation as to why there was no delay in filing the appeals and how the amounts paid by the petitioner in appeal against the Order in Original No.14 of 2017 was in excess of 7.5% required to be pre-deposited under Section 35 F of the Central Excise Act, 1944 for entertaining the aforesaid appeal - In case, the office of the 1st respondent still finds there was deficit in the pre-deposit amount by petitioner against its appeal against the Order in Original No.14 of 2017- dated 10.02.2017, the petitioner shall be informed about the same in writing consequent to which the petitioner shall deposit the deficit amount within a period of one week from the date of receipt of such communication from the office of the 1st respondent - On such deposit, the appeals shall be numbered forthwith subject to formal order for condoning the delay if such application is required and dispose the appeals within a period of three months thereafter.
Petition allowed.
............
|
9911796707
