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Showing 101 to 120 of 20945 Records
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2017 (12) TMI 1781 - ANDHRA PRADESH HIGH COURT
Seizure of goods along with vehicles - goods were not accompanied by an e-way bill generated by the recipient trader of Andhra Pradesh State/Telangana State - validity of G.O. Ms. No. 309, dated 24-7-2017/G.O. Ms. No. 180, dated 9-8-2017 - HELD THAT:- As the State Legislature is competent to make laws only with reference to the intra-State movement of goods or services, Rule 138 has to be construed as being applicable only to such goods or services. This being the position, prima facie this Court is of the opinion that G.O.Ms. No. 309, dated 24-7-2017, as extended by G.O. Ms. No. 446, dated 3-10-2017, upto 31-12-2017, issued by the State of Andhra Pradesh, and G.O. Ms. No.180, dated 9-8-2017, issued by the State of Telangana, are not enforceable insofar as the inter-State movement of goods and services is concerned.
In view of the prima facie findings arrived at by this Court hereinbefore, we are of the opinion that the detention of goods along with vehicles by the States of Andhra Pradesh and Telangana only on the ground of non-generation of e-waybill by the traders of their respective States receiving the goods, is not permissible.
The goods along with the vehicles belonging to the petitioners shall be released on their executing a bond to the effect that in the event of determination of tax liability, they will pay the tax along with the penalty, if any - Petition allowed.
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2017 (12) TMI 1780 - ITAT PUNE
Disallowance of Labour Charges - AO found certain discrepancies in the vouchers so maintained and as the assessee had failed to substantiate expenses made under the head ‘site expenses’ and also not maintained any muster roll or control register to monitor the said expenses and disallowed 5% of expenses - HELD THAT:- The assessee had incurred labour expenses at various sites totaling ₹ 5.02 crores. Revenue has not controverted the findings of CIT(A) in this regard. Now, the question which arises in the present appeal is disallowance made out of said labour charges by the authorities below.
The reason for disallowance is discrepancies noted in the vouchers maintained, wherein writing on the vouchers appeared to be the same person. Assessee had failed to maintain any muster roll or wage register. Also, no amount was deducted on account of Provident Fund and ESIC. The payees were also not verifiable. The case of assessee was that majorly payment was made through cheque. Merit in the aforesaid disallowance made by the authorities below. However, we restrict the same to 3% of labour charges. The grounds of appeal raised by the assessee are thus, partly allowed.
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2017 (12) TMI 1779 - ITAT MUMBAI
Correct head of income - premium received on account of the tenancy rights - Capital gain or income from other sources - allowed deduction u/s 54EC - HELD THAT:- We find that the issue is of recurring in nature and stood in assessee’s favor from AY 2007-08 to 2011-12 wherein held that legislature has intended to define the term “capital asset” in the widest possible manner. This definition has been curtailed to the extent of exclusions given in section 2(14) itself which include stock in trade and personal effects. The impugned asset does not clearly fall in the aforesaid exclusions given in section 2(14). The bundle of rights acquired by the assessee are undoubtedly valuable in terms of money. In our view, the said tenancy rights shall form part of a capital asset in the hands of the assessee and, therefore, any gains arising therefrom would be assessable under the head “Income from capital gains eligible for deduction u/s 54EC of the Act. - Decided in favour of assessee.
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2017 (12) TMI 1778 - BOMBAY HIGH COURT
Custody and transportation of Metro Rails which are manufactured by EVRAZ East Metals AG - HELD THAT:- Defendant RRC agree and undertake that 3278.7 MT (18 Meter rails) and 253.14 MT (25 Meter Metro Rails) of Metro rails presently lying with them in their warehouse (in good condition) would be given delivery of to the Plaintiff LSI. Defendant RRC states that 250.35 MT of 18 meter Metro Rails are in transit from Mumbai to Nagpur and will reach MAHA METRO site in Nagpur within 7 days from today. Upon such delivery, RRC will hand over to LSI the MAHA METRO delivery receipt for the said 250.35 MT rails. Defendant RRC agree and undertake to handover 15 clamps as specified in the contract.
The matters will be taken up for hearing on 15th January, 2018 when this Court will consider all claims, contentions and submissions of all parties, inter alia, including on the following issues –
a. Whether any security should be furnished for the amounts claimed by RRC?
b. Which party should furnish the security, if any?
c. What is the amount for which the security should be furnished?
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2017 (12) TMI 1777 - ITAT JAIPUR
Capital gain computation - FMV determination - reference to DVO - Adoption of fair market value @ ₹ 300/- per sq. yard as on 01-04-1981 - HELD THAT:- There is a wide gap in land rate as given by Registered Valuer and actual sale instances cited by the DVO. Registered Valuer had simply stated in the Valuation Report that the rate of land as on 01-04-1981 is ₹ 1400/- per sq. yard based on local survey. No sale instance is quoted to arrive at such rate by Registered Valuer.
Registered Valuer’s valuation of land @ ₹ 1400/- per square yard is not based on any independent supporting document. It is simply mentioned in the valuation report that rate is based on local survey. However, what evidences were gathered in the survey to arrive at such rate is not provided. Therefore, in my considered view the value adopted by the Registered Valuer at ₹ 1400/- per sq. yard is very high and unreasonable. The DVO had given sale instances of the same locality. The assessee relied on sale instances which are from far away areas from the location of concerned property. Keeping all these relevant facts in view, the rate adopted by ITAT, Jaipur bench in first round at ₹ 300/- per sq. yard is quite fair and reasonable. Hence, the Bench directs to adopt the fair market value @ ₹ 300/- per sq. yard as on 01-04-1981.
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2017 (12) TMI 1776 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Sanction of Scheme of Amalgamation - Sections 230 to 232 and Section 234 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 1075 of 2017 filed by the Petitioner Companies are made absolute in terms of prayer clause (a) of the Petition.
The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of receipt of the order - Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme duly certified by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench with the concerned Registrar of companies, electronically, along with E-form INC 28 within 30 days from the date of issuance of the order by the Registry.
The Petitioner Companies to pay costs of ₹ 25,000/- each to the Regional Director, Western Region, Mumbai. Transferor Company 3 & 4 (First and Second Petitioner Company above to pay cost of ₹ 25,000/- to the Official Liquidator, High Court, Bombay - The costs to be paid within four weeks from the date of receipt of Order.
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2017 (12) TMI 1775 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Dispensation with convention of meeting of the Equity Shareholders of the Petitioner Company - Petitioners submits that the Company Petition is filed in consonance with section 230 to 232 read with Section 234 of the Companies Act, 2013 along with the Order passed in Company Scheme Application No. 915 of 2017 by the Tribunal - HELD THAT:- At least 10 clear days before the date fixed for hearing, Petitioner Companies to publish the notice of hearing of the Petition in two local newspapers viz "Free Press Journal" in English and "Navshakti" in Marathi, both circulated in Mumbai.
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2017 (12) TMI 1774 - ITAT BENGALURU
TP Adjustment - transaction of rendering of services of market management support services - determining ALP adjustment in respect of management fee to intra-group services - HELD THAT:- CIT(A) had not examined any evidence to show that the agents have actually rendered their services. The learned CIT(A) had totally misdirected himself by examining the issue from the angle of tax deducted at source and he had failed to examine whether the services are actually rendered by the commission agents or not. Unable to sustain the order of the learned CIT(A) and hold that the commission payments in question are not allowable.
Assessee company had miserably failed to demonstrate the actual services rendered by the agents to whom the commission payments were made, despite ample opportunity granted by this Tribunal to furnish evidence in support of service rendered by commission agent.
Condition of rendition of services should be satisfied by the assessee so as to allow the same as expenditure. In the present case, assessee- company had not produced any evidence in support of rendering of services before the TPO. It is only before us, by way of additional evidence, assessee-company has filed some material, in support of the actual services rendered by the AE.
CIT(A) had no occasion to examine this evidence as it was claimed that this evidence was filed for the first time before us . CIT(A), without examining the aspect of actual rendition of services by the AE in respect of IT services, had directed the allowance of expenditure. Therefore, in interests of justice, we restore this issue to the file of the AO for purposes of verification of this evidence and come to conclusion whether the services are actually rendered by the AE or not and direct the TPO/AO to bench mark the transaction of rendering of services of market management support services, after being satisfied himself that the services are actually rendered by the AE.
On the principle of consistency, we hold that each assessment year is separate and distinct. The principles of res judicata have no application to income-tax assessment proceedings. Simply because in the preceding year, this expenditure came to be allowed without any probe or enquiry it does not preclude the AO from making the enquiries on these issues.
In the present case, assessee-company had not discharged the onus of proving the receipt of services before lower authorities. Despite opportunities given to the assessee-company, no attempt was made by the assessee-company to lead necessary evidence in support of receipt of actual services from the AE. The submission of the assessee- company that an opportunity may be granted to the assessee-company to discharge onus, cannot be accepted because it is settled principle of law that the assessee-company cannot be accepted, because it is settled principle of law that the assessee-company cannot be given a second innings to make good its case.
Simply because in earlier years the issue was remanded back to lower authorities, remand cannot be ordered in the present year without valid reason in the light of the decisions cited supra. Needless to mention that each year is an independent and separate assessment year and the principle of res-judicata is not applicable. It may be mentioned here that in the earlier assessment year in the assessee's own case, this issue was decided against the appellant . Hence, the appeal is dismissed.
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2017 (12) TMI 1773 - ITAT CHANDIGARH
Rectification of mistake - TP Adjustment - AMP Expenditure - JV Agreement was not produced - joint venture company i.e. the assessee, has been entrusted with the responsibility to market the goods in India and which is contrary to the findings of the Hon'ble ITAT that obligation to incur the expenditure has been presumed to exist only on the basis of the quantum of expenditure - HELD THAT:- Basis for allowing the appeal by the I.T.A.T. and basis for holding that the AMP spend by the assessee was not an international transaction in the first place, was on account of the fact that the Revenue had failed to point out the existence of any arrangement or agreement between the assessee and its associated enterprise reflecting the entrustment of the liability/responsibility to carry out brand promotion expenses on behalf of the parent AE by the assessee.
The clauses now referred to by the Revenue in support of its contention that they reflect the entrustment of the responsibility of carrying out brand promotion to the assessee by AE, we find are of no relevance. Clause No.21 of the JV referred to by the Revenue only states that the assessee company would market the licensed products which are manufactured in India. This is just a normal sales promotion responsibility for the goods manufactured by the assessee, entrusted to the assessee.
It cannot by any stretch of logic be read to mean that the expenses for promoting the brand of AE was entrusted to the assessee. Similarly, the trade mark agreement at clause 22 of the Joint Venture agreement referred to by the Revenue in its Miscellaneous Application merely states that the trade mark name and logo of Widex is the exclusive property of the parent AE and separate agreement would be executed between the parties to ensure that it remains so in future also. We fail to understand how this throws any light on the entrustment of the responsibility to carry out brand promotion on behalf of the AE by the assessee, nor has the same been clarified before us - no error in the order of the I.T.A.T. - Decided against Revenue.
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2017 (12) TMI 1772 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Service of notice - appellant submitted that before treating the petition for winding up as am application under Section 9 of the I&B Code the respondent has not complied with the provisions of the I&B Code as no notice under sub-section (1) of Section 8 of the I&B Code was issued in Form 3 or 4 and the application has been admitted though there is existence of a dispute.
HELD THAT:- In the present case as notice under sub-section (1) of Section 8 of I&B code has not been issued by the Respondent (operational creditor), we hold that the application preferred by the Respondent was incomplete. In this circumstances, we have no other option but to set aside the impugned order dated 28th July, 2017 passed by the National Company Law Tribunal, Chennai Bench, Chennai and declare that the application preferred by the Respondent under Section 433 of the Companies Act, 1956 stands abated.
The order (s) passed by Ld. Adjudicating Authority appointing any ‘Interim Resolution Professional’ declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action, if any, taken by the ‘Resolution Professional’, including the advertisement, if any, published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by Respondent is dismissed - Adjudicating Authority will fix the fee of ‘Interim Resolution Professional ‘, and the appellant will pay the fees of the ‘Resolution Professional’, for the period he has functioned.
Appeal allowed.
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2017 (12) TMI 1771 - ITAT CHENNAI
Eligibility for 80IC deduction - adjustment of proportionate R&D expenditure certified by DSIR in Form 3CL by the AO is unwarranted as these R&D expenditures does not relate to HP unit - HELD THAT:- R&D expenditure certified by DSIR is location specific and recognition of R&D unit by DSIR is given only for R&D unit in Hosur. On the other hand, the Revenue pleads that the assessee is carrying out research & development activities relating to automotive seating applications. The research activities cover seating applications for Buses, Trucks, Tractors and Two-wheelers.
The research activities encompassing product conceptualization, designing, development of sample lots, testing and commercialization. The benefits of such research is availed by all the units of the assessee and hence the R& D expenditure has to be apportioned. AO as well as the CIT (A) have given a concurrent findings. In spite of it, from the entire pleadings it is clear that the assessee has not disputed such facts. It has not laid any material to say that the unit in the Himachal Pradesh has not availed or is not or would not avail the benefits of the impugned R& D etc and hence the apportionment made by the AO and as modified by the CIT(A) is upheld. On the above facts and circumstances, the case laws relied on by the assessee are held as not applicable .The assessee’s grounds fail.
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2017 (12) TMI 1770 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Appointment of original respondent No. 3 as director - allotment of shares - appellants criticised the impugned judgment of the National Company Law Tribunal and stated that the finding that resolution dated October 8, 2013 is invalid is wrong - HELD THAT:- The notice had been issued to the petitioner regarding the meeting to be held on December 7, 2016 and he submitted detailed comments which the board of directors considered and discarded. There was then further meeting on December 26, 2016 the petitioner filed I.A. No. 38 of 2016 in the National Company Law Tribunal, but he did not participate in the meetings. The board of directors took decision considering the affairs of the company to tide over their financial difficulties and if that was done, the same could not have been set aside merely by observing that there was no justification for the acts of the respondents or that there was undue haste. The justification is borne out from the minutes of these meetings - When procedure is followed and steps taken, the acts could not have been questioned branding them as undue haste. Such considerations of the board cannot be found fault with being matters of company affairs. If the petitioner had difficulty, he should have participated in the meetings to say whatever he wanted. In the facts of present matter, we find ourselves unable to agree with the learned National Company Law Tribunal.
When the National Company Law Tribunal could not record finding of oppression or mismanagement and there was material to show that the petitioner had not come with clean hands, it was not open for the learned National Company Law Tribunal to still go on to set aside the appointment of respondent No. 3 and set aside shares issued as per the resolution passed on December 26, 2016 or give direction that the respondents will purchase the shares of the petitioner. For the above reasons, the appeal is allowed.
The impugned order of the National Company Law Tribunal is quashed and set aside - petition dismissed.
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2017 (12) TMI 1769 - ITAT JAIPUR
Disallowance of exemption u/s 54F - residential house property purchased in the name of his wife - HELD THAT:- In light of legal proposition so laid down in case of Mahadev Balai [2017 (1) TMI 183 - ITAT JAIPUR] where the investment in the new house property has flown from the assessee, which is not in dispute in the instant case, merely for the reason that the new residential house property has been purchased by the assessee in the name of his wife, the same cannot be basis for the denial of deduction claimed u/s 54F of the Act.
Regarding the second condition of claiming the deduction u/s 54F as have gone through the affidavit so filed by the assessee and are of the view that the same is clear and self-explanatory wherein the assessee has categorically stated that on the date of purchase of residential property, which happens to be the date prior to date of sale of the original asset, he didn’t own any other house other than the new asset. In that view of the matter, the contention so raised by the ld AR is accepted.
Assessee is held eligible for deduction under section 54F in respect of residential house property purchased in the name of his wife. - Appeal of the assessee is allowed.
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2017 (12) TMI 1768 - DELHI HIGH COURT
Disallowance u/s 14A (2) - AO disallowed certain amounts after rejecting the assessee’s explanation with respect to the statutory disallowance on an application of Rule 8D of the Income Tax Rules - Commissioner granted the relief which was confirmed by the ITAT - HELD THAT:- The issue in the opinion of this Court is now covered by the judgment of the Supreme Court in Godrej & Boyce Manufacturing Co. Ltd. v. DCIT [2017 (5) TMI 403 - SUPREME COURT]. In that judgment, the Court confirmed the opinion of various High Courts bringing to tax any amount under Section 14A and applying the Rule 8D, the Assessing Officer has to record prima facie satisfaction that the claim of the assessee is inadmissible. In the present case, no such satisfaction was recorded. The ITAT’s conclusions are, therefore, justified. No substantial question of law arises
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2017 (12) TMI 1767 - PUNJAB AND HARYANA HIGH COURT
Validity of Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017 - HELD THAT:- Notice of motion to respondents No.1 to 4 only for 25.1.2018.
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2017 (12) TMI 1766 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment in respect to ECB facility - existence of debt and default or not - Whether there is any defect in the Power of Attorney as stated by the Debtor or not? - HELD THAT:- The ground reality is, debt and default are not in dispute, that means the creditor proved its case; law cannot become an impediment to achieve justice basing on this reality. In the section of law or in the Rules, it has nowhere been mentioned that power of attorney should not file a case on behalf of the company, it only says that financial creditor can file. The terminology of authorised person is generic in nature, whereas, power of attorney is specific in nature. The phrase "authorised person" is a caption in general, encompassing the caption of "power of attorney", because "power of attorney" is also nothing but authorisation with more rigours. Moreover, the word "Authorised Person" is loosely used without defining it, therefore, the usage of this word "Authorised Person" in the form annexed to Rules cannot invalidate the power of attorney. Power of Attorney defines principal and agent relationship. When an agent is chosen to deal with certain subjects, it need not be seen in which form that subject is, the point to be seen whether subject matter authority is given to him or not - this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor.
Whether pending of appeal over the order dismissing winding up petition against the Corporate Debtor, will have any bearing over adjudication of this case or not? - HELD THAT:- If the proposition of law does not stop the decree upon which appeal is filed, it is far fetching to say that IBC proceedings shall not be initiated looking at an appeal pending over some other proceedings filed against this Corporate Debtor. For the sake of clarity, we reiterate that winding up petition was dismissed against this very corporate debtor. Therefore, this argument of the corporate Debtor counsel saying this case shall not proceed because of pendency of an appeal over the dismissal order over the winding up petition does not hold any merit.
Whether this case has to be postponed or not on the ground that on reference (in the matter of Union Bank of India vs. Era Infra Engineering Ltd. [2017 (9) TMI 1078 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI]) to the larger Bench on the issue of as to that whether proceeding under IBC can be triggered while winding up petition pending before the respective High Courts against the same Corporate Debtor? - HELD THAT:- Since no winding up petition is pending before High Court as of now against this corporate debtor, except an appeal on dismissal order, this petition cannot be kept under suspension by looking at a fight this very corporate debtor fighting before Appellate Authority for confirmation of the original order. In view of the same the ratio decided in those cases is not applicable to the present case.
Whether Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 has any bearing on adjudication of this case or not? - HELD THAT:- Any circular that is in recommendatory in nature and suggesting IBC proceedings in 12 accounts will not amount to depriving other accounts to be filed before this Adjudicating Authority under IBC provided they fall within the ambit of IBC. Henceforth, we have not found any merit in this argument canvassed by the corporate debtor.
Whether Facility Agreements have been inadequately stamped as stated by the Corporate Debtor, if so, whether this petition can be admitted basing on such inadequately stamped Agreement? - HELD THAT:- The corporate debtor counsel has nowhere mentioned how much stamp duty is to be paid, how much is not paid by the Petitioner, his hypothetical argument will not be relevant to decide any case because duty is cast upon the person raising objection. Moreover, facility agreement alone is not the document to prove this case, there is surplus material to prove that debt and default are in existence whereby, this argument is not sufficient enough to deny the claim of Petitioner herein, henceforth, the argument of the corporate debtor is hereby dismissed.
Whether formation of Joint Lender Forum will have any bearing over filing of this case or not? - HELD THAT:- It has already been held by the Hon'ble NCLAT Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] that JLF proceedings pending against the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point.
Whether the Statement of Account filed by DBS is in compliance with Part V Serial No. 7 of Form No. 1 or not? - HELD THAT:- The inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the same, this Corporate Debtor has nowhere denied about existence of debt and occurrence of default.
The Petitioner herein has furnished all the material to prove the existence of debt and occurrence of default.
Petition admitted - moratorium declared.
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2017 (12) TMI 1765 - MADRAS HIGH COURT
Reopening of assessment - Exemption from sales u/s 5(3) of the CST Act, 1956 - sales effected by M/s.Tea Serve to exporters in the auction center - rejection of benefit on the ground that petitioners have not complied with G.O.Ms.876 dated 29.07.1982 - HELD THAT:- The issue decided in the case of M/S. THE UNITED NILGIRI TEA ESTATES CO. LTD., M/S. STANES AMALGAMATED VERSUS THE COMMERCIAL TAX OFFICER (FAC) , THE STATE OF TAMIL NADU [2017 (12) TMI 689 - MADRAS HIGH COURT] where it was held that fulfilment of condition as specified in the notification is mandatory.
The impugned order is quashed and the matter is remanded to the first respondent for redoing the assessment in accordance with law.
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2017 (12) TMI 1764 - CALCUTTA HIGH COURT
Provisional release of detained goods - authorities have not disclosed any reason contemplated therein to obstruct provisional release of the goods - CBEC Circular 35/2017-Customs dated 16th August, 2017 - HELD THAT:- Now that representation has been made by a partner of the firm who had imported the goods, the respondent no.1 is to consider and dispose of the same within ten days from date. For the purpose of dealing with the representation the said respondent will call for hearing of the person making the representation as well as DRI. In dealing with the representation the said respondent, if is to exercise discretion to deny provisional release of the goods, must take care to give reasons within the scope of the observations of the Madras High Court as mentioned in paragraph 3 of the said circular.
Appeal disposed off.
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2017 (12) TMI 1763 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD
Approval of Resolution Plan - learned counsel appearing for EXIM Bank submitted that the bank has not yet been supplied with a copy of the resolution plan - application for stay of the present proceedings has been filed and is now sub judice before the Hon'ble NCLAT - HELD THAT:- The PCS representing the RP submitted that he is not aware of filing of such stay application. However, there is no stay till date - As of today there is no stay from Hon'ble NCLAT in respect of proceeding of this Tribunal or for pronouncement of order on approval or otherwise of the resolution plan, therefore, this court can proceed further to pass an order. However, this order would be subject to outcome of pending appeal and appropriate directions that may be issued by the NCLAT in pending appeal.
The Committee of Creditors in its meeting held on December 07, 2017 has approved the resolution plan as submitted by M/s Atyant Capital India Fund - I through voting (of more than 80%) in its favour as per Section 30(4) of the Insolvency and Bankruptcy Code, 2016, read with Regulation 39(3), of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulation, 2016. Subsequently, the State Bank of India also which earlier remained absent in such voting. Later on it has duly concurred with the CoC, such decision dated 07.12.2017 for approval of the resolution plan. Hence, it is deemed that 100% of CoC member has agreed for and approved the resolution plan as submitted by the Atyant Capital India Fund - The RP received a legal opinion and vetting from M/s Luthra & Luthra, M/s Vinod Kothari & Co. and M/s J. Sagar & Associates, all of them have confirmed the resolution plan opining that such Plan is in conformity with the provisions of Insolvency and Bankruptcy Code. 2016. As the Resolution Applicant M/s Atyant Capital India Fund has made such declaration that the Resolution Plan does not contravene any provision of the law for time to time being in force which is annexed with the present application and to be formed part of the resolution plan.
A perusal of Proposed Resolution Plan shows that all the requirement of the IBC and CIRP regulations have been complied with. Further, the proposed Resolution Plan seems to be bona fide and beneficial to the interest of the company, nor it is forbidden by law - Therefore, this court being an Adjudicating Authority is not expected to substitute its view with Commercial Wisdom of the RP and CoC nor it should deal with technical complexity and merits of Resolution Plan unless it found contrary to express provision of law and goes against the public interest.
Application allowed.
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2017 (12) TMI 1762 - ITAT HYDERABAD
Deduction u/s 80IAB - case of the Revenue that the assessee does not qualify for exemption u/s 80IAB as it is not doing any business activity, but is simply letting out the property - provisions of SEZ Act over riding effect over Income Tax Act - HELD THAT:- Assessee is a developer under the SEZ Act and is in the business of developing a SEZ, the SEZ has been notified on the first day of April 2005 under the Special Economic Zone Act 2005 ; and the profits have been derived from the business of development, operation and maintenance of SEZ.
We thus fully agree with the finding of the Ld. CIT(A) that all the conditions as required to be specified under the SEZ Act/Rules are fulfilled and the assessee is approved developer for all the intent and purposes of Section 80 IAB I.T of the Act. Consequent upon approval granted by the BOA for transfer of bare shell to the co-developer, the profits arising to the assessee forms such an authorized transaction are eligible for deduction u/s 80IAB - Decided against revenue.
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