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Showing 121 to 140 of 1125 Records
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2020 (11) TMI 1005
Recovery of sales tax dues - recovery from the property of the Assessee in default - the property is transferred to a bona fide purchaser without notice of encumbrances over the property on account of Sales Tax dues - protection to buyer against recovery of the Sales Tax dues when the Encumbrance Certificate issued to such purchaser by the Sub-Registrar to the effect that there is no encumbrance on the said property - What will prevail-whether Encumbrance Certificate or priority of State dues?
HELD THAT:- There are different views from different Benches of this High Court - the matter would require further consideration.
The learned Special Government Pleader appearing for the Revenue shall also give the details of the determination of the arrears of Tax against the Assesssee in default in the present case, intimation of the charge, if any, over the property to the Sub Registrar and registration thereof, if any - For a period of 3 weeks, the Respondent, Commercial Taxes Department may not proceed to recover the dues in question from the property in question, purchased by the Petitioner. However, they will be free to proceed against other properties of the Assessee in default or take other measures for recovery of such dues against the Assessee in accordance with law and submit a Report of the same.
Put up after 3 weeks, as prayed on 17.12.2020.
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2020 (11) TMI 1004
Pay fixation in respect of employees appointed to Selection Grade in Pre-revised between 1-1-1986 and 12-9-1986 - M.R.O.M.No.7(21)-E.III(A)/74 dated 10-1-1977 - HELD THAT:- If at all the writ petitioner is aggrieved regarding the grant of increment with effect from 01.02.1999 he should have filed appropriate application before the Central Administrative Tribunal along with his colleague during the relevant point of time. Contrarily, he cannot file a litigation seeking the very same benefit after several years, since the case filed by his colleague has attained finality. Such an attitude of a Government Servant cannot be encouraged by the Courts. An aggrieved person should approach the court of law within a reasonable period of time. Especially, the writ petitioner was working in the responsible post of Inspector of Central Excise. Thus, he is aware of the rules and regulations and as well as the service rights.
Whenever his service conditions are affected he is at liberty to approach the competent forum for redressal. Contrarily, he cannot file a writ petition based on the orders passed in some other case with reference to the Original Application filed before the Central Administrative Tribunal in the year 2005. If such writ petitions are entertained, all other retired employees will approach this Court after a lapse of many years seeking the similar relief. Thus, the said conduct of the writ petitioner in approaching the Court of law belatedly cannot be encouraged.
The present writ petition is filed by the writ petitioner at the age of 68 years after a lapse of 10 years from the date of retirement seeking the benefit of arrears of increment from 01.02.1999. Now, he would be around 74 years. Thus being the factum established, the writ petitioner undoubtedly slept over his right and therefore, he cannot wake up one fine morning and knock the doors of the Court for seeking remedy - Petition dismissed.
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2020 (11) TMI 1003
Seeking Replacement of IRP - It is submitted that the CoC on 26 October 2020 has resolve to replace the IRP Mr. Nazim Khan with Ms. Deepika Prasad - HELD THAT:- The resolution passed for replacing the IRP has been passed with 87% voting share. Therefore, Ms. Deepika Prasad is appointed as RP and Mr. Nazim Khan is hereby relief from the assignment with the direction to hand over the record and assets of CD within 10 working days to Ms. Deepika Prasad against proper receipts.
The Proxy Counsel for Mr. Nazim Khan is present but has no information about the detail of remuneration and out of pocket expenses, which is to be paid to the IRP. Therefore, the CoC is directed to work out the remuneration and other expenses, if any, and pay the same to the IRP viz., Mr. Nazim Khan within 2 weeks.
Application allowed.
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2020 (11) TMI 1002
Approval of Scheme of Arrangement - Sections 230 to Section 232 of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of notices also issued - application allowed.
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2020 (11) TMI 1001
Seeking a direction to the respondents to impose and deduct 12% GST from suppliers, who export raw bones along with mutton tallow to other states as raw materials - HELD THAT:- The general allegation leveled by the petitioners in this petition is that some individuals, who are in the trade of exporting raw bones, are also exporting mutton tallow without payment of 12% GST and the inaction of the respondents to check the aforesaid activity and to impose 12% GST on such individuals, has adversely affected their business.
The grievance projected herein cannot be looked into or adjudicated upon by this Court in the absence of specific particulars and such persons being arrayed as party respondents. This petition is too general and vague to be entertained by this Court. Accordingly, this petition, which lacks material particulars constituting the grievance of the petitioner, is found to be not entertainable and the same is, accordingly, dismissed.
Petition dismissed.
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2020 (11) TMI 1000
Oppression and mismanagement - Rights Issue - transfer of shares between family members - Section 241 of the Companies Act, 2013 - HELD THAT:- It can be seen that the petitioner has not raised any specific objection against the Rights issue. The petitioner has not pointed out any negative impact on the rights of the petitioner by issuance of further shares - It is well settled principle that for a case of oppression and mismanagement, there needs to be a conduct amounting to misconduct by the majority towards the minority. Further, where a majority of members exercise their rights as shareholders in the conduct of the company’s affairs, the fact that there is oppression, lapse or impropriety on the part of an officer not pertaining to or unconnected with the exercise of voting rights by a majority of shareholders, will not justify invocation of Section 241 of the 2013 Act.
It was held in the case of Lammertz Industrienadel GmbH v. Altek Lammertz Needles Limited, [2008 (5) TMI 736 - COMPANY LAW BOARD, CHENNAI] that further increase of capital followed by allotment of shares with a view of saving the Company from its state of crises. There was no diversion of the company’s business to any other company. Hence, there is no oppression made out.
Therefore, it is no longer res-integra that the right issue for genuine purpose and for the benefit of the company is not illegal until proved otherwise. The petitioner/minority shareholders have to prove the mala fide of the majority in order to get relief against the Righst issue. In the case in hand petitioner himself attended the meeting, submitted his objections against the Rights issue. The petitioner has a chance to purchase/invest more in the company. There is no single instance of oppression or mismanagement by way of further issue of Rights by the directors of the company.
Let the matter be listed on 04.12.2020 for further consideration.
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2020 (11) TMI 999
Scheme of merger - seeking dispensation as well as holding and convening of various meetings - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various directions regarding dispensation, holding and convening of various meetings issued - directions regarding issuance of various notices issued.
The scheme is sanctioned - application allowed.
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2020 (11) TMI 998
Approval of scheme of amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- The meeting of Equity Shareholders and Unsecured Creditors were dispensed with in view of the consents given by all the Equity Shareholders and Unsecured Creditors of the Petitioner Companies - Directions regarding issuance of notices, issued - application allowed.
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2020 (11) TMI 997
Rejection of the claim by the RP - claim over an arbitral award directing the corporate debtor to pay the amount - HELD THAT:- Many a times there could be a possibility to the creditors not knowing about initiation of CIRP. It comes out through paper publication. In normal practice, service through paper publication comes into picture when personal service is not effected. That option is not available. So in a situation like this, there is every possibility for missing out information, but that cannot take away the primary right of realization against the debtor. Therefore, it cannot be made straight jacket formula to reject the claims outright at least until before approval of the plan by the Adjudicating Authority.
The resolution professional is directed to consider this claim on merits - Application disposed off.
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2020 (11) TMI 996
Seeking enlargement on anticipatory bail - extraordinary power under Section 438 of Cr.P.C. - It is the case of the prosecution that the petitioner-accused No. 1 used the complainant to extract money from him and others by falsely implicating them in the conversation - HELD THAT:- There cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court.
The power under Section 438 of Cr.P.C. is an extraordinary power which was incorporated before other provisions for granting of bail under Section 437 and 439 of Cr.P.C. and judicial discretion is a matter regard and required to be exercised with due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail.
In catena of decisions, even in Constitutional Bench law relating to grant of anticipatory bail has been discussed and emphasized that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India which relates to personal liberty and it shall be given a liberal interpretation.
It is the duty of the Court to exercise its jurisdiction in proper way to protect the personal liberty of a citizen. If the Courts do not interfere, we are troubling the path on destruction - It is well settled proposition of law that while considering the bail application, the Court cannot hold a mini trial. If at all because of the intervention of the petitioner-accused No. 1, the tendering authority has disqualified the complainant from the tender process, then under such circumstances, some civil remedy is also available for the complainant to proceed in accordance with law, if he is advised to do so.
Complainant being a responsible person and Director of a big construction company cannot be expected to speak in a tutored manner. It is true that autobiography and antecedents of the accused must be seen while considering the bail application, but at the same time autobiography and antecedents of the complainant must also be seen. Court has to put the facts of the case of the complainant and accused into a scale and weigh it to ascertain the truth. Complainant who is before the Court has also not come up with clean hands and it appears that all is not well. Thus, in order to ascertain the truth, a fair and unbiased investigation is necessary.
Petitioner-accused No. 1, namely Rakesh Shetty, shall execute a personal bond for ₹ 2,00,000/- with two sureties for the like sum to the satisfaction of the Investigating Officer - petition allowed.
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2020 (11) TMI 995
Cancellation of bail granted - main contention of the petitioner before this Court is that the accused is a habitual offender and in support of the said contention, has listed out the cases pending against him - HELD THAT:- No doubt there are 10 criminal cases pending against respondent No. 2 for the commission of offences, out of which one case is for the commission of offence punishable under Sections 420, 468, 471, 120B of IPC and other three cases are for the offences punishable under Sections 376, 420, 506 and 417 of IPC whereas the particulars of the said cases were not furnished before this Court while granting bail to accused under Section 439 of Cr.P.C. As it is rightly pointed out by learned counsel for respondent No. 2, he has not been convicted for any offences in any other cases and it is also to be noted that in all the aforesaid cases, he has been enlarged on bail.
On perusal of the material placed before the Court, except listing out the cases registered against the accused, no other material is placed before the Court to show that he has been convicted for the commission of any offences in any other cases and in order to substantiate that he is a habitual offender, no material is placed before the Court - It is clear from reading of the Section 439(2) that the High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. In the case on hand, there is no any allegations against respondent No. 2 that he has violated the order of bail granted in his favour except alleging that there are number of cases registered against him.
In the case on hand, no doubt, though 10 cases are listed out, out of which 3 cases are registered for the offences punishable under Sections 376, 420, 417 and 506 of I.P.C. It is important to note that in all the cases he has been enlarged on bail invoking Sections 438 and 439 of Cr.P.C. and not convicted. Merely because the prosecution has failed to bring out the said cases which are pending against him while considering the bail petition, the same cannot be a ground for canceling the same - To invoke Section 439 (2) of Cr.P.C., there must be material before the Court to show that there is violation of conditions of the bail order granted or the accused is coming in the way of trial. Mere filing of cases is not a ground to come to the conclusion that he is a habitual offender and he has to be tried and found material that he is having criminal antecedents and having considered the nature of cases registered against him and the offences invoked against him, it requires full fledged trial to ascertain the truth.
In the absence of any material to show that he has violated the order of the Court or coming in the way of the trial and when this Court has considered the bail petition on merits, the question of canceling the bail does not arise at all. In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21 of the Constitution of India cannot be curtailed on the mere ground of number of cases being pending against him.
It is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases when it causes miscarriage of justice, if it is not invoked and the same has to be exercised sparingly and not mere asking of the cancellation of bail - Petition dismissed.
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2020 (11) TMI 994
Refusal of the Allahabad High Court to quash the FIR - Power of police to investigate an issue, the substratum of which is sub judice before this Court in the civil appeals - long delay in lodging the complaint - purchase of 3 vehicles by respondent as against his claim to have purchased 7 vehicles - HELD THAT:- The question whether the 3rd Respondent-complainant purchased 3 vehicles as revealed by the VAHAN Portal of the Government or 7 vehicles as claimed by him in his complaint, is a question of fact which has to be established only in the course of investigation/trial. In a petition for quashing the FIR, the Court cannot go into disputed questions of fact.
Delay in lodging complaint - HELD THAT:- The mere delay on the part of the 3rd Respondent-complainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents. Therefore, the second ground on which the Petitioner seeks to quash the FIR cannot be countenanced.
Effect of pendency of the Civil Appeals arising out of the order of the NGT and the interim order passed by this Court in the Civil Appeals for quashing of FIR - HELD THAT:-The applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. This is why the NGT, by its final order dated 07.03.2019 directed only the CPCB to consider the initiation of prosecution in the light of the applicable statutory regime, while ordering the manufacturers to deposit ₹ 500 crores as compensation for the damage caused to the environment - the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot be taken as an impediment for an individual who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.
The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as 'defeat devices' were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars - we are unable to agree with the contention of the learned Senior Counsel for the Petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the Petitioner, by granting protection against arrest till the filing of the report Under Section 173(2) of the Code. We do not think that the Petitioner can ask for anything more.
The SLP dismissed.
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2020 (11) TMI 993
Maintainability of application - initiation of CIRP - default in payment of Settlement Agreement - financial debt or not - it is stated by appellant that Corporate Guarantor had undertaken to discharge the liability arising out of dishonoring of cheques issued by the Principal Borrower in favour of the Financial Creditor - HELD THAT:- Mere obligation to pay does not bring the liability within the ambit of ‘financial debt’. The debt, along with interest, if any, should be disbursed against the consideration for the time value of money. Breach of terms of an agreement including a Settlement Agreement whereunder payment may be due would not fall within the ambit of Section 5(8) so as to constitute a ‘Financial Debt’ - Admittedly, inter se the parties, there is no disbursement against the consideration for the time value of money. Principal borrower is not a party to Settlement Agreement. Viewed in the context of Settlement Agreement, there is no borrowing on the part of Respondent from the Appellant. Mere obligation to pay under a Settlement Agreement would not amount to disbursal of amount for consideration against the time value of money and breach thereof would not entitle the Appellant in the instant case to trigger Corporate Insolvency Resolution Process against the Respondent.
It is found that bouncing of cheques issued in discharge of obligation under the Settlement Agreement would not fall within the purview of default in regard to financial debt.
The Appellant may have other remedies available under law for effecting recovery of money due in terms of the Settlement Agreement but the triggering of Corporate Insolvency Resolution Process is not warranted. Insolvency proceedings stand at a different footing and cannot tantamount to recovery proceedings. Corporate Insolvency Resolution Process cannot be initiated for purposes of recovery of money - appeal dismissed.
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2020 (11) TMI 992
Admission of application of State Bank of India - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Issue notice upon Respondents. Appellant to provide mobile Nos./ e-mail address of the Respondents. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within three days.
List the appeal on 13th January, 2021.
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2020 (11) TMI 991
Capital gain computation - determination of Fair market Value (FMV) as on 01.04.1981 - reference made to DVO u/s.55A of the Act to determine the fair market value of land as on 01/04/1981 - addition towards long term capital gains by rejecting the fair market value as on 01/04/1981 adopted by assessee - HELD THAT:- We note that at the relevant time, i.e. A.Y. 2012-13, the Assessing Officer can make a reference to the DVO u/s.55A of the Act only if the value so adopted by the assessee u/s.48 is not supported by the Valuation Report of Govt. approved valuer or if the AO is of the opinion that the value of capital asset claimed by the assessee is "less than its fair market value" and not when "it is more than its fair market value". We note that none of the condition got fulfilled, hence Ld. AO is not legally competent to make reference to the DVO. As explained above the amended provision of Sec. 55A is not applicable to all those documents which got registered before 01.07.2012, therefore, we note that the AO has (with its fair market value) misinterpreted the provision and erroneously applied it retrospectively.
With effect from July 1, 2012, the expression now used in clause (a) of Section 55A is 'at variance’ the situation may, therefore, be different after July1, 2012 which is applicable for assessment year 2013-14 whereas the assessee`s case under consideration relates to assessment year 2012-13 hence amended provisions are not applicable to the assessee. Taking into account, the facts narrated above we note that the issue under consideration is fully covered in favour of the assessee by the judgement of the Divisional Bench of ITAT, Surat in the case of Shri Mahdevbhai Mohanbhai Naik [2018 (7) TMI 2029 - ITAT SURAT ] - Decided in favour of assessee.
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2020 (11) TMI 990
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The scheme had been accepted and after payment of necessary dues, they were issued with SVLDRS certificates which are on record.
Miscellaneous applications and appeals are disposed off.
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2020 (11) TMI 989
Requirement of issuance of SCN prior to filing and entertainment of anticipatory bail application - requirement of issuing notice to Government Advocate - HELD THAT:- There is no provision in the Rules of Court regarding filing and entertainment of anticipatory bail application - However all the anticipatory bail applications are being filed before this court in accordance with the provision of Chapter XVIII Rule,18 of the Rules of Court after serving prior notice of the same on the Government Advocate. Therefore the requirement of granting time to the Government Advocate to obtain instructions within seven days where the court grants an interim order in an anticipatory bail is not in the interest of speedy justice.
The unnecessary complication of passing interim order and then final order in the anticipatory bail application can be avoided in case the office of Government Advocate is vigilant and it obtains instructions within two days of the receipt of notice of the anticipatory bail applications - Hence the Government Advocate is directed to instruct his office to obtain instructions in the anticipatory bail applications within two days of receipt of notice. Otherwise the court may decide the anticipatory bail application on the basis of material brought on record by the applicant. Modes of fast communication are there which should be availed in getting speedy instructions in anticipatory bail matters.
The applicant is directed to be enlarged on interim anticipatory bail in the meantime.
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2020 (11) TMI 988
Initiation of Moratorium against Personal Guarantor - Section 97 (1) of IB Code - HELD THAT:- Upon verification of the record, that there is material reflecting admission of company petition against the principal debtor (M/S Multiwal Pulp and Board Mills Pvt Ltd.) and this personal guarantor standing as guarantor to the loan availed by the said corporate debtor, the interim moratorium is deemed to have commenced from the date of filing of this application in relation to all the debts and any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed and the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt and further directs IBBI to provide information as to any disciplinary proceedings pending against the Resolution Professional sought to be appointed in this case so as to appoint him as RP u/ s 97 (5) of the Code.
List this application on 25.11.2020 for the recommendation of IBBI as stated u/ s 97 (2) of the Code.
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2020 (11) TMI 987
Seeking ad-interim protection - Sections 153A, 295A, 124A read with Section 34 of the Indian Penal Code - HELD THAT:- The ad-interim protection deserves to be granted till further orders. Accordingly by way of ad-interim relief, we direct the respondent No.1 not to take any coercive action/steps including arrest against the applicants until further orders.
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2020 (11) TMI 986
Grant of Bail - tax evasion - compoundable offences or not - Section 132 of the Central Goods and Services Act, 2017 - HELD THAT:- The maximum punishment awardable under the Act of 2017 being five years, offences being compoundable, filing of the complaint against the petitioner after completion of the investigation and absence of criminal antecedents; but, without expressing any opinion on the merits of the case, this Court deems it just and proper to enlarge the petitioner on bail.
The bail application is allowed and it is directed that accused-petitioner Pradeep Kumar Bansal S/o Nagarmal Gupta shall be released on bail, subject to conditions imposed - Decided in favor of appellant.
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