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Showing 441 to 460 of 1125 Records
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2020 (11) TMI 685
Classification of goods - consignment imported under SKD condition - Exemption for the purpose of assessment for countervailing duty - Import of components for manufacturing colour Doppler SSD-4000 Ultra Sound Scanners - HELD THAT:- When the goods are presented in SKD condition, Revenue does not have authority of law to separate different parts and components and classify them differently in view of Rule 2(a) of General Rules for Interpretation of the Customs Tariff. If Revenue wants to remove certain parts from the SKD package and classify differently, then Revenue has to establish that remaining parts, if assembled together have essential character of final product. Revenue has not brought forward any such evidence. Further, CBIC issued clarification which is reproduced in foregoing paragraph. The said clarification relies on Chapter Note 2(b) to Chapter 90 and the same is binding on departmental officers. Thus, the impugned orders are not sustainable.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 684
Direction to prevent the official Respondents herein from lowering their seniority - Respondent was directly recruited as a Group-II Officer in the post of Assistant Commercial Tax Officer (ACTO)[now re-designated as Deputy Commercial Tax Officer(DCTO)], which is the entry level post in the Subordinate Services of the Commercial Taxes Department, and were in the post of Joint Commissioners/Deputy Commissioners when the writ petitions were filed - HELD THAT:- Division Bench set out the four principles that were adopted by the Division Bench of this Court in W.P. 12786 of 1975 and affirmed by the Hon'ble Supreme Court in paragraph 4 thereof. In addition, in paragraph 5, the Division Bench of this Court referred to and extracted an earlier order based on the statement of the learned Advocate General. The said extract refers to the statement of the learned Advocate General that the seniority list that was placed before the Hon'ble Supreme Court in the contempt proceedings would operate only up to the year 2010 and would change thereafter on account of the increase in cadre strength both in the year 2010 and 2013. It also records the fact that direct recruits and promotees disagree as to whether the seniority list meets the parameters. After recording the aforesaid, in paragraph 8, the Division Bench directed the State Government to await the outcome of W.A. No.2280 of 2011 and proceed in terms of the four principles set out in paragraph 4.
Therefore, it is clear that the Division Bench did not impose an embargo on the State Government so as to prevent the preparation of the seniority list but made it clear that the preparation of the seniority lists should be in accordance with the four principles. The reason for directing the State Government to await the outcome of the judgment in W.A. No.2280 of 2011 is stated in paragraph 2 of the above judgment and will be clear when the nature of the said dispute is examined.
The State Government is entitled to prepare the seniority lists by adhering to the applicable general and special rules and the four principles that were formulated by this Court and affirmed by the Supreme Court, including by making revisions in consonance therewith. However, as regards temporary posts, the door was shut firmly by the Supreme Court and as reiterated by the Division Bench in the judgment in W.A. No.2280 of 2011, no revision can be made on that score without the intervention of the Supreme Court - Once the provisional seniority lists are prepared and published, it will be open to the private parties herein to object to and challenge the same, if they are aggrieved in any manner.
Appeal allowed.
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2020 (11) TMI 683
Restoration of the name of the Respondents Company in the register maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes that, if it is just and equitable to restore the name of the respondent- company in the Registrar of Companies, it may direct the RoC to restore the name in its Register - The appellant Income-tax hasbeen able to satisfy this Bench that they are the aggrieved party within the meaning of Sec.252(1) read with Section 252(3) of Companies Act, 2013 and great prejudice will be caused to Revenue and public at large, if the name of the respondent company is not restored back.
The Appellant has filed its affidavit of service on 05.02.2020, wherein it states that service through publication was effected through newspapers Financial Express and Jansatta on 30.01.2020 on the Respondent Company and its Directors in pursuance of the order of this Tribunal. It is further stated that in spite of proper service to the respondent nos. 2 to 4, none appeared. Hence, the case was proceeded ex-parte against the said Respondents vide order dated 03.03.2020. On 15.10.2020 respondents 2 to 4 put in appearance and both the sides agreed to revival of the respondent company - The Income Tax Department is an aggrieved party within the meaning of section 252(1) and a creditor under Section 252(3) as it has to recover tax demand and penalty from the respondent company and great prejudice will be caused to the Appellant if the name of the respondent company is not restored back. In the above circumstances, this appeal is allowed.
The Registrar of companies is therefore directed to restore the name of the Respondent Company in their Register - Application allowed.
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2020 (11) TMI 682
Approval of Scheme of Arrangement for the demerger - Section 230-232 of Companies Act - HELD THAT:- Direction for dispensation of various meetings issued - directions for issuance of various meetings issued - application disposed off.
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2020 (11) TMI 681
Approval of scheme of amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- In compliance of Sub-Section(5) of Section 230 of the Act and Rule 8 of the Companies (CAA) Rules, 2016, all the applicant companies shall send notices under Sub-Section (3) of Section 230 read with Rule 6 of the Rules with a copy of the Scheme of Arrangement, the explanatory statement and the disclosures mentioned in Rule 6 to (a) the Central Government through the Regional Director, South Eastern Region; (b) the Registrar of Companies, Kerala and (c) the Income Tax Authorities immediately at any rate within a week from the date of receipt of this order. The said notices be sent either by Registered Post or by Speed Post or by Hand Delivery at the Offices of the authorities as required by Sub Rule (2) of Rule 8 of the Rules. The aforesaid 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 (thirty) 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 Amalgamation of the aforesaid Companies.
The Applicant Companies are directed to present a Petition to this Tribunal in Form No.CAA-5 for sanction of the Scheme of Amalgamation of Narmada Design and Construction Private Limited and Narmada Builders and Traders Private Limited with Rhea Traders Private Limited.
Application disposed off.
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2020 (11) TMI 680
Restoration of name of the company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act, 2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able to demonstrate that it is just to do so, can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserve to be restored.
Application restored - appeal allowed.
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2020 (11) TMI 679
Approval of Scheme of Amalgamation - section 230 and 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 - HELD THAT:- Perusal of the scheme shows that the accounting treatment is in conformity with the established accounting standards. In short, there is no apprehension that any of the creditors would lose or be prejudiced if the proposed scheme is sanctioned. The said Scheme of Amalgamation will not cast any additional burden on the stakeholders and also will not prejudicially affect the interests of any class of the creditors in any manner. The Appointed date of the said Scheme is 01st April, 2018 - Petitioner Companies have stated that the scheme Proposed does not fall within the ambit of sections 5 and 6 of the Competition Act, 2002.
The scheme does not require any modification as it appears to be fair and reasonable, not contrary to public policy and also not violative of any provisions of law. All the statutory compliances have been made under section 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Scheme of Amalgamation between the Transferor Companies 1 & 2 and the Transferee Company was duly approved by the shareholders of respective companies - Petition allowed.
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2020 (11) TMI 678
Winding up of Company - whether the Company Court would retain jurisdiction to hear the winding up petition? - HELD THAT:- It is clear from the Judgment that the learned Judge was of the view that the Company Court retains jurisdiction over winding-up petitions which were filed before the IBC came into force. In that view of the matter, the Court held that the Official Liquidator acting as the Provisional Liquidator could retain the symbolic possession of the assets and properties of the Company (in liquidation). It was also decided that questions of title to the flats, etc. were declaratory in nature and could hence only be decided by this Court. The important part of the Judgment however is the point of time when this Court reasserts its jurisdiction for deciding the issues related to the Company (in liquidation). This Court is informed that the Corporate Insolvency Resolution Professional (CIRP) commenced in March, 2019. An order of the NCLT, Kolkata Bench dated 12th February, 2020 records that the CIRP period of 330 days was completed on 5th February, 2020 and that one more opportunity for resolution of the corporate debtor [the Company (in liquidation)] was being given and 90 days was excluded from the CIRP period.
The Resolution Plan has admittedly not seen the light of the day. More than six months have passed since the 90 days extension given to the RP in terms of the order dated 12th February 2020 of the NCLT. It is evident therefore that no Resolution Plan is forthcoming in the near future. However, since the application of the RP is due to be listed on 15th December, 2020, this Court is inclined to pass final order only after 16th December, 2020.
List this matter on 16th December, 2020.
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2020 (11) TMI 677
Maintainability of petition - availability of alternate remedy of appeal provided under Section 61 of the I.B. Code - Whether notification issued under Section 4 of the MPID Act and consequent attachment of the property including the bank account of the corporate debtor can be challenged by approaching NCLT under Section 60(5) of the I.B. Code?
HELD THAT:- Full Bench of this Court in the case between Vijay C. Pulijal vs. State of Maharashtra [2005 (9) TMI 303 - HIGH COURT OF BOMBAY] held that the provisions of MPID Act are ultravires for want of legislative competence of the State legislature. The Full Bench of this Court took a view that the MPID Act transgressed into the field reserved for Parliament. The Full Bench held that the subject matter covered by the MPID Act squarely falls within the ambit of section 58-A and 58-AA of the Companies Act.
Thus, it is clear that MPID Act is a complete Code and enacted to protect the interest of depositors in Financial Establishments. The Respondent, i.e. IRP, was mainly aggrieved by the issuance of notification dated 19/10/2018 under Section 4 of the MPID Act. As set out hereinabove Section 7 of MPID Act provides a remedy to the aggrieved person including the present Respondent, i.e. IRP, to approach the Designated Court pointing out the objection to the attachment of any property of the Financial Establishment or any portion thereof. The Designated Court is empowered to either make the order of attachment passed under sub-Section 1 of Section 4 absolute or varying it by releasing a portion of the property from attachment or cancelling the order of attachment entirely. Thus, it is clear that the Respondent-IRP is having a remedy to approach the Designated Court under Section 7 of the MPID Act. A bare reading of the provisions of the MPID Act clearly demonstrates that action taken under the MPID Act is to be challenged before the Designated Court under the MPID Act and the order passed by the Designated Court can be challenged in appeal before the High Court under section 11 of the MPID Act.
Thus it is clear that Section 18 of the I.B. Code specifying duties of interim resolution professional, although provides in sub-Section 18(f) that he shall take control and custody of any asset over which the corporate debtor has ownership rights, however the same is subject to the determination to the ownership by a Court or Authority. In this particular case, such Court will be the Designated Court as per the provisions of the MPID Act.
The appropriate forum to challenge the attachment of the account of the Respondent is the Designated Court under MPID Act where the Respondent can raise all contentions on merits and also can point out the provisions of I.B. Code and the effect of the same on the steps taken under the MPID Act. It will be for the MPID Court to consider the interplay of the provisions of the MPID Act and the I.B. Code and rule on the matter. Such ruling would obviously include even the aspect of prior appointment of IRP by NCLT and subsequent attachment of the said account by notification dated 19.10.2018 issued under Section 4 of the MPID Act.
The Respondents can approach the Designated Court under section 7 of the M.P.I.D. Act seeking appropriate reliefs - Petition disposed off.
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2020 (11) TMI 676
Direction to 2nd Respondent to release the machinery in possession with the 1st Respondent/Corporate Debtor and transfer the possession of the same to the Applicant - HELD THAT:- In the statement, in regard to payment for the security arrangements of the Corporate Debtor it is stated that even though three securities have been arranged to guard the Corporate Debtor premises to keep the machineries, the Resolution Professional has limited it into two securities charges and claimed the six months charges of ₹ 1,90,080. Since the applicant undertake to make payment of ₹ 75,000/- in addition to ₹ 38,414/- already paid by them, the Resolution Professional should accept that amount, as the Corporate Debtor property is still under the possession of the Resolution Professional, the Resolution Professional has also to bear a part of the payment, without shouldering the full responsibility on the applicant as the CIR Process is not yet completed.
Regarding the other payments, since the applicant has agreed to bear the CGST payment provided the Bristo Foods Pvt.Ltd. cooperate in signing the documents and that they are ready to pay the upfront amount of ₹ 2,95,400/- provide the Bristo Foods Pvt.Ltd allow them to lift the machineries, there will not be any further dispute in those matters. They have also undertook to remove the machineries without causing any damage to the property of the Corporate Debtor.
The applicant shall pay the CGST liability of ₹ 19,40,892/- demanded by the CGST Department and the Corporate Debtor Bristo Foods Pvt.Limited or Resolution Professional, as the case may be, sign the communications to be submitted to the Department, as the registration number is with the Bristo Foods Private Limited - applicant shall pay the upfront amount of ₹ 2,95,400/- towards the outstanding dues to the Bristo Foods Pvt.Limited.
Application disposed off.
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2020 (11) TMI 675
Permission to applicant/State of Kerala to use the Corporate Debtor Hospital, RIMS Hospital, Erattupetta as Covid Hospital for Covid patients with immediate effect - Section 33(1)(b) of IBC, 2016 - HELD THAT:- The request of the applicant District Collector seems to be reasonable in view of the pandemic condition in the State of Kerala, due to Covid-19. Hence this M.A is allowed with the following conditions: -
I. A detailed inventorisation of the subject property be carried out in the presence of the officials of the Applicant, the representative of the Liquidator prior to handing over of the premises to the applicant.
II. During the acquisition of the Corporate Debtor (Hospital)the applicant cannot change or make any permanent structure in the aforesaid premises.
III. The subject property (Hospital) be taken over by the Applicant on ‘as is where is basis” without any further liability/expenditure on the part of Respondent, including but not limited to Electricity charges, Water usage, cleaning Sanitisation, Repair and maintenance of building and repairs and maintenance to machineries and equipment’s, etc. till the date of returning possession. (in this connection GO(MS) No.21/2020 Disaster Management Department dated 25.06.2020 may be referred to).
IV. that any amount that is spent by the applicant for using the Hospital cannot be claimed from the Respondent herein.
V. the Applicant shall not allow the Promoters or their representatives to enter the Hospital premises or engage in the management of the Hospital during the period when the Applicant is utilising the property.
VI. On receipt of the letter based on this Order, the Liquidator will immediately hand over the premises to the applicant District Collector, for a period of Two months (60 days).
VII. The Applicant will return the premises to the Liquidator after expiry of two months (60 days) from the date of taking over the premises from the Liquidator, without any wear and tear and on “as is where is” basis. In case the purpose for which the premises taken by the applicant is not completed, the applicant District Collector is at liberty to approach this Bench for further orders. If no request for extension is received it would be presumed that the applicant is no more interested to continue the purpose for which the Corporate Debtor is taken and the Liquidator can proceed to procure back the Corporate Debtor (Hospital) for Liquidation purpose.
VIII. The premises shall be used only for Covid Treatment under Covid 19 and that it should not be used for any other purpose, whatsoever.
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2020 (11) TMI 674
Exclusion of lockdown period w.e.f. 25.03.2020 to 30.06.2020 from the CIRP period - Section 60(5) of the IBC Code, 2016 read with Regulation 40(C) of the IBBI (IRP for Corporate Persons) Regulations, 2016 and read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).
The Insolvency and Bankruptcy Board of India, inserted Regulation 40C to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, vide notification dated 29.03.2020 has held Special provision relating to time-line Notwithstanding the time-lines contained in these regulations, but subject to the provisions in the Code, the period of lockdown imposed by the Central Government in the wake of COVID-19 outbreak shall not be counted for the purposes of the time-line for any activity that could not be completed due to such lockdown, in relation to a corporate insolvency resolution process.
Similarly, the Insolvency and Bankruptcy Board of India, vide notification dated 20.04.2020, inserted Regulation 47 A to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 held that Subject to the provisions of the Code, the period of lockdown imposed by the Central Government in the wake of Covid-19 outbreak shall not be counted for the purpose of computation of the timeline for any task that could not be completed due to such lockdown, in relation to any liquidation process.
In the circumstances and for the reasons mentioned in the application and in view of the orders of the Hon'ble Supreme Court of India, National Company Law Appellate Tribunal and in view of the Regulations issued by Insolvency and Bankruptcy Board of India, the instant application is allowed.
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2020 (11) TMI 673
Permission for withdrawal of Resolution Plan post CoC's approval - HELD THAT:- It is very interesting to note that the factors which Adjudicating Authority is now capable to consider for limited judicial view are not mentioned in Section 30(2). This is a significant departure in judicial approach whereas earlier it was generally held that the role of NCLT was limited to see that Resolution Plan confirms to the requirements of Section 30(2) on the assumption that both RP and CoC had already seen aspects mentioned therein and merits of the Commercial wisdom of CoC could not be interfered with
The CoC must take into consideration interest of all stakeholders in the best possible manner and for that purpose, it should follow the principle of fair play and reasonableness while supervising CIRP and approving the Resolution Plan. Consequently, the process adopted by Resolution Professional and CoC should not only be in accordance with the provisions of IBC, 2016 but should also not be arbitrary or unreasonable. The above proposition has also been statutorily recognized by way of amendment of Regulation 39(3) of CIRP Regulations. It is also noteworthy provision of simultaneous voting on Resolution Plan has been brought in this regulation which also goes to show the legislative intent as regard to transparent process be followed by RP/CoC.
There appears to be a certainty in the mind of RP/CoC that irrespective of delays to any extent such application is not required as Resolution Applicant cannot withdraw itself from such process.
The Resolution Applicant is granted permission to withdraw its Resolution Plan - Application disposed off.
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2020 (11) TMI 672
Dissolution of the Corporate Debtor - Section 54 of the IBC - Whether the pendency of any Investigation on the Corporate Debtor creates a bar for passing on order of dissolution of a Company?
HELD THAT:- When a company gets dissolved under Section 248, it will cease to operate except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Though the Legislature has specifically made such a provision when dissolution takes place by virtue of Section 248 of Companies Act 2013, such exception cannot be presumed to be available as a thumb rule in situations when dissolution takes place via other modes especially under the I & B Code, 2016, where no such provision is expressly available.
It is evident that the pendency of an Investigation creates a bar for RoC to strike off the name of the Company from the register of companies, as well as for making an application for removal of the name of the Company - That it is an established fact that the moment the dissolution of a Company takes place, its legal entity ceases to exists, neither it can sue nor it can be sued in its own name.
Thus, it is clear that the dissolution puts an end to the legal existence of a Company. Once a company is dissolved, it becomes a non-existent party and therefore, no action can be brought in its name. Further, the Liquidator shall also not be able to represent the non-existent Corporate Debtor before any of the investigating forum.
In order to facilitate completion of investigation, maximisation of assets and the value thereof and to ensure smooth distribution of the proceeds arising out of such investigation amongst various stakeholders of the Corporate Debtor, the judicial propriety demands that the Corporate Debtor should not be dissolved at this stage when the investigation as ordered by Hon'ble NCLAT is pending - the pendency of an investigation creates a bar in ordering dissolution of the company.
Application dismissed as premature.
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2020 (11) TMI 671
Liquidation order - no privity of contract - financial debt - Applicant Bank has claimed that it has got absolute right to file claim Petition before the Liquidator and the said claim is squarely falling within the purview of "financial debt" and alleged that the Liquidator has erroneously rejected the claim Petition on the ground that there is no privity of contract between 1st and 2nd Respondents - HELD THAT:- The Appellant Bank has filed its claim in relation to the dues pending from COGIL before the Liquidator of NOCL. However, COGIL had filed its claim before the Liquidator, which stood rejected and against the said order of rejection, no appeal seems to have been preferred by COGIL before this Tribunal. Since COGIL has filed its claim before the Liquidator of NOCL, it will not in any way entitle the Appellant Bank to make a claim in relation to the COGIL vis-avis the company under liquidation with the Liquidator of the NOCL. The recourse if at all can be only against the COGIL in relation to the debts owed to the Appellant and not against NOCL, unless the said company, namely NOCL has stood as a guarantor/surety to the loan and financial facilities by the Appellant to COGIL. From a careful perusal of the pleadings as contained in the Appeal nothing comes to the fore to the said effect.
Further, it is also required to be seen, eventhough a valiant effort was made by the Learned Counsel for the Appellant to bring in the aspect of privity and proximity of NOCL to the debts of COGIL owed to the Appellant in relation to the aspect of security by way of mortgage of lands sub-let by NOCL to COGIL with the concurrence of SIPCOT of the leased portion, however even from the said angle, the 1st Respondent Company under liquidation through its Liquidator and its creditors cannot be bound in terms of Section 125 of the Companies Act, 1956 or under Section 77 of the Companies Act, 2013 in view of the absence of Registration of charge with the concerned Registrar of Companies in relation to the assets charged, even assuming if there is any, in the absence of any privity to the contract as between COGIL and the Appellant.
It is seen that a charge of Equitable Mortgage by deposit of title deeds was created by COGIL in favour of the Appellant Bank in respect of the properties which were leased out by NOCL to COGIL. However, from the claim form filed in Form D by the Appellant Bank with the Liquidator on 10.01.2019, in relation to the details of debt incurred, it is stated that COGIL had availed term loan disbursed on 02.09.2011. In relation to dates giving rise to cause of action, if assuming if there is any, as against NOCL, nothing more has been specified as to when the debt of the Appellant Bank has become due and payable - Further, from the records, it is evident that the Appellant Bank has relied on the letter of rejection of the Liquidator dated 11.05.2020. As per Section 42 of IBC, 2016, an Appeal against the order of Liquidator has to be filed within a period of 14 days from the date of decision of the Liquidator. Apparently, it is seen that the Appellant Bank has filed the present Appeal via email before the Registry of this Tribunal on 11.06.2020 and there has been a delay of 17 days on the part of the Appellant Bank in filing the present Appeal before this Tribunal and also it is evident from the records that no Application seeking for condonation of delay has been filed by the Appellant Bank before this Tribunal.
In absence of any specific Application seeking for condonation of delay having been filed by the Applicant in approaching this Tribunal by way of an Appeal against the Order of rejection of its claim by the Liquidator beyond the prescribed period of 14 days - The Appeal as filed by the Appellant Bank under Section 42 of IBC, 2016 is liable to be dismissed.
Appeal dismissed.
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2020 (11) TMI 670
Exclusion of time period from time period for completion of CIRP of Corporate Debtor - extension of 120 days from 01.07.2020 to 28.10.2020 for completion of CIRP of Corporate Debtor - HELD THAT:- In this case, the CIRP period of 180 days has already been extended by another 90 days vide this Adjudicating Authority's order dated 05.11.2019 and by virtue of section 12 of IBC, 2016, a period another 60 days was extended vide order dated 11.02.2020. The period of 270 days + 60 days came to an end on 09.02.2020 and 09.04.2020 respectively. Now that the Applicant herein is seeking exclusion of period lost due to outbreak of Covid-19 pandemic.
Considering the submissions, facts and circumstances of case, interest envisaged by the Prospective Resolution Applicant for resolution of Corporate Debtor and in view of the decision of CoC in its 17th meeting dated 29.06.2020, as well as the economic scenario emerging due to COVID-19 pandemic and it's fall out, this Adjudicating Authority observes that exclusion of time period for completion of CIRP lost due to lockdown imposed by Central Government and State Government from time to time would be in the interest of all stakeholders, to allow the completion of CIRP rather than going for liquidation of the Corporate Debtor which should only be initiated as a last resort. Accordingly, this Adjudicating Authority hereby approve the exclusion of another period of 97 days from calculation of CIRP period.
This exclusion is granted on having considered the steps already been taken by the RP, approval by the CoC with 81.11% and the current stage of CIRP in the case of the present Corporate Debtor i.e., M/s. Athena Chhattisgarh Power Limited. Further, upon considering the aspect of exclusion of period of 97 days, this Adjudicating Authority is of the view that a sufficient time is already been granted for completion of CIRP - petition disposed off.
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2020 (11) TMI 669
Approval of Resolution Plan - Directions to the Committee of Creditors (CoC) requiring the CoC to consider Final Resolution Plan - directions to amend the Request For Resolution Plan (RFRP) issued by the Resolution Professional - main contention of the learned counsel for the applicants is that certain clauses in the RFRP are in contravention of the provisions of the SARFAESI Act and the RBI Guidelines.
HELD THAT:- The Resolution Plan was rejected on the ground that M/s. Prudent ARC will not invest in equity and will not become a shareholder of the Corporate Debtor. RFRP provides that in case of Consortium, all the parties in the Consortium to be jointly and severally liable for implementation of the Plan. This objection has been raised by the Resolution Professional from time to time. However, the Plan was not amended to include M/s. Prudent ARC to share the responsibility of implementing the Resolution Plan jointly and severally with other Resolution Applicants in the Consortium. The plan is not in conformity with the RFRP. The RFRP is duly approved by the CoC. When the Plan is in conformity with the RFRP, then only the Resolution Professional is expected to place such Resolution Plan with CoC.
The Adjudicating Authority cannot decide viability or feasibility of the requirements in RFRP. The CoC in its wisdom has formulated RFRP in their own interest. The Resolution Plan is inevitably to be complied with the requirements before placing the same at CoC for its consideration. M/s. Prudent ARC joined in the Consortium only to satisfy the requirements of networth. It is the requirement of RFRP that the Resolution Applicant cannot unilaterally change/withdraw Resolution Plan once it is submitted to the Resolution Professional. According to the Resolution Plan filed by the Resolution Applicants, M/s. Prudent ARC, they will not participate in the equity as per the extent of RBI Guidelines.
It is very clear from the arguments of the learned counsel for the Resolution Professional that the Plan submitted by the applicants is contrary to the conditions laid down in RFRP. Interestingly, the Resolution Professional had given three chances to the applicants to make amendments to the Resolution Plan so as to make it compatible with requirements of the RFRP. Instead of complying with the requirements of the RFRP, M/s. Prudent ARC is voicing its difficulty in complying with the RFRP requirements. The personal difficulties of M/s. Prudent ARC have nothing to do with the requirements of RFRP. The requirements of RFRP bind on all the Resolution Plans. The Resolution Professional is expected to place Resolution Plans which are in conformity with the requirements of RFRP. There is no need to place the Resolution Plans which are not in conformity with the RFRP requirements.
Section 30(3) of the I&B Code provides that if the Plan confirms the requirements contained in section 30(2) of the I&B Code, then the same to be placed before the CoC. There is nothing wrong in not placing the Resolution Plan of the applicants before the CoC since the Plan is not conforming to the requirements of the RFRP. Further it is not satisfying the requirements of Section 30(2)(c) and (d). Therefore, there is no irregularity committed in not placing the Resolution Plan of the applicant before the CoC and rejecting the same by the Resolution Professional.
Application dismissed.
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2020 (11) TMI 668
Exclusion of certain time from the CIRP period in view of the time lost in replacing the Interim Resolution Professional and also the lockdown imposed due to Pandemic Covid-19 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition (Civil) No(s). 3/2020 in Re: cognizance for extension of Limitation, vide order dated 23.03.2020, [2020 (5) TMI 418 - SC ORDER] observed as under:-"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).
The Insolvency and Bankruptcy Board of India, inserted Regulation 40C to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, vide notification dated 29.03.2020 has held Special provision relating to time-line Notwithstanding the time-lines contained in these regulations, but subject to the provisions in the Code, the period of lockdown imposed by the Central Government in the wake of COVID-19 outbreak shall not be counted for the purposes of the time-line for any activity that could not be completed due to such lockdown, in relation to a corporate insolvency resolution process.
Similarly, the Insolvency and Bankruptcy Board of India, vide notification dated 20.04.2020, inserted Regulation 47 A to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 held that Subject to the provisions of the Code, the period of lockdown imposed by the Central Government in the wake of Covid-19 outbreak shall not be counted for the purpose of computation of the timeline for any task that could not be completed due to such lockdown, in relation to any liquidation process.
In the circumstances and for the reasons mentioned in the application and in view of the orders of the Hon'ble Supreme Court of India, National Company Law Appellate Tribunal and in view of the Regulations issued by Insolvency and Bankruptcy Board of India, the instant application is allowed.
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2020 (11) TMI 667
Money Laundering - proceeds of crime -reasons to believe - It is alleged that the appellant no.1 Mr. Bharat Yadav has acquired properties in his name as well as in the name of his family members from the proceeds of above mentioned crimes including the alleged crime of robbery, dacoity, extortion and offences relating to arms under Arms Act, 1959, since 1988 onwards. It is also alleged that appellant no.1 Mr. Bharat Yadav has acquired aforesaid immovable properties after 01.07.2005 (i.e. after PMLA came into force), from his criminal activities, in his name or in the name of his family members.
HELD THAT:- The Ld. Adjudicating Authority has not examined whether the satisfaction of the Complainant regarding reasons to believe is in accordance with law - On perusal of the PAO, it is seen that the Deputy Director has only mention the verbatim of Section 5(1)(b) of the PMLA, 2002.
The impugned order dated 31.05.2018 is set aside and remanded to the Adjudicating Authority for re-adjudication of the case against the appellants within 180 days from the date of receipt of this order or from the date of the order when either of the parties brings it to the knowledge of this order. The appellants are directed to file appropriate application within thirty (30) days from today raising all the legal issues raised in these appeals, before the Adjudicating Authority, who shall after giving due opportunity to both the parties decides all the legal issues including the issue of “reasons to believe” - The Adjudicating Authority shall decide all the issues raised in the case, except the issues decided above, in accordance with provisions of sub-section 2 of Section 8 of PMLA,2002 and also record findings whether all or any of the properties attached are involved in money laundering under Section 8(3) of PMLA, 2002. This Tribunal has not expressed any opinion on merits of the source of income, earnings out of which or by means of which the appellants have acquired attached properties.
However, during the course of proceedings before the Adjudicating Authority the attachments shall continue and both the parties shall maintain status quo in respect of the attached properties - Application disposed off.
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2020 (11) TMI 666
Recovery of Refund of service tax - foreign agency commission rendered - services rendered prior to 18.04.2006 - Applicability of Section 66A in the Finance Act, 1994 - HELD THAT:- This Court in SOUTHERN SURFACE FINISHERS AND THRICHUR DISTRICT PADDY MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LIMITED VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, MUVATTUPUZHA AND THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THRISSUR [2018 (11) TMI 1208 - KERALA HIGH COURT] considered the Constitution Bench decision and found that the mistake if committed by the assessee, whether it be on law or facts; the remedy would be only under the statute. If that be so, the questions of law have to be answered in favour of the Revenue and against the assessee. But, however, we notice that the amounts have been refunded to the assessee as per the order of the original authority.
Though, the question of law is answered in favour of the Revenue, the Revenue to be incapable of recovery of the amounts refunded as tax due - appeal is disposed of, answering the questions of law in favour of the Revenue; but restraining the respondent-Revenue from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as 'Business Auxiliary service' prior to 18.04.2006.
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