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2018 (12) TMI 1952 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 OR proceedings u/s 153C - HELD THAT:- As substantial questions of law arise for consideration:
(i) Whether on the facts and in the circumstances of this case, the Income Tax Appellate Tribunal was justified in upholding the validity of the proceedings under section 147 of the Income Tax Act, 1961?
(ii) Whether on the facts and in the circumstances of this case, the Income Tax Appellate Tribunal was justified in holding that the proceedings under section 147 were rightly taken instead of proceedings under section 153C of the Income Tax Act, 1961?
(iii) Whether on the facts and in the circumstances of this case, the Income Tax Appellate Tribunal was justified in upholding the reopening for the assessment year 2012- 13?
(iv) Whether on the facts and in the circumstances of this case, the Income Tax Appellate Tribunal was justified in upholding the addition of Rs.1,22,24,800/- in the assessment year 2012-13, despite the fact that the appellant was not a seller or even the confirming party in the sale deed?
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2018 (12) TMI 1951 - ITAT NAGPUR
LTCG on sale of land - AO found that assessee is a 'Consentor' and not the owner of the lands sold - legal owner of land - HELD THAT:- We find from the records that assessee had purchased the land through the registered sale deeds and sold the said land for a total consideration of Rs. 1,55,00,000/- through registered sale deed dated 21.04.12. The said sale deed executed by the assessee has shown as a 'Consentor' because the name of the assessee was not mutated in the government record and the purchaser was not ready to purchase the agricultural land without authenticity of land owner. Therefore in such circumstances, there was no alternative that the assessee how to sell the lands with original owners and therefore, assessee executed the sale deed in favour of purchaser in the capacity of owners and had infer the possession of said land.
As correctly appreciated by Ld. CIT(A) that the previous owners of the land after execution of sale deeds in favour of assessee in the year 1998-99 had no locus standi &s regards the owner of the land once they had preferred their right title and interest in the said lands in favour of the assessee in the year 1998-99 and till the possession by executing registered sale deed - CIT(A) had correctly concluded that the assessee as Such was the legal owner of both the lands as on execution of sale deed in the year 2012, had earned capital gains and thus allowed the said transaction. The assessee had correctly held to have earned capital gains and was liable to be taxed. - Decided in favour of assessee.
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2018 (12) TMI 1950 - CESTAT NEW DELHI
Clandestine Removal - output as per the SAIL norm or not - public sector undertaking - HELD THAT:- In this case no investigation has been taken up by the department regarding the use of raw material, electricity, sale of the raw material, mode of transport etc. to sustain alleged clandestine removal and covered by the decision of RA CASTINGS PVT. LTD. VERSUS COMMISSIONER OF C. EX., MEERUT-I [2008 (6) TMI 197 - CESTAT NEW DELHI] and M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA & OTHERS [2014 (9) TMI 243 - ALLAHABAD HIGH COURT].
It is also found that the show cause notice proposed to follow the output norm being obtained by the SAIL which is highly complex integrated plant having latest technology and infrastructure. It is not possible for the unit like appellant to have as same technology and infrastructure as available to the SAIL in this case and the production norm is treated to be identical. The department has not taken this much of the evidence into account by alleging the clandestine removal on the part of the appellant.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1949 - CALCUTTA HIGH COURT
Depreciation on enclosed withering trough - whether Tribunal was justified in holding that an enclosed withering trough machine is not an energy saving device or a pollution control equipment ? - tribunal justification to hold that enclosed withering trough is not covered under new Appendix-I of the Income Tax Rules, 1962 and is not entitled for higher rate of depreciation - Whether the claim for depreciation on intangible assets acquired on purchase of the Dulabh Cherra Tea Estate, as a going concern, and used while carrying business is allowable under the provisions of the Income Tax Act, 1961? - applicability of section 115JB - HELD THAT:- Since the respondents are represented by learned counsel in Court issuance and service of the notice of appeal are dispensed with.
Let informal paper books be filed by the Advocate-on-Record for the appellant by 25th January, 2019. The contents of the paper book filed before the tribunal may constitute the paper book in this appeal. A copy thereof should be served on the Advocate-on-Record for the respondent at least four days before the date of hearing of the appeal. All other formalities are dispensed with.
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2018 (12) TMI 1948 - ITAT MUMBAI
Estimation of income - Bogus purchases - assessee has failed to furnish relevant documentary evidences to conclusively prove the genuineness of purchases made from the concerned party - HELD THAT:- It is a fact on record that the sales turnover shown by the assessee has not been disputed or doubted by the departmental authorities Addition of the entire non genuine purchases would be improper. In such circumstances what the assessee might have suppressed is the profit element embedded in such purchases, which may also include the local tax payable. Therefore, to take care of any leakage in revenue, only the profit element embedded in such purchases can be considered for addition. Thus, considering the overall facts and circumstances of the present case we are of the view that addition at the rate of 12.5% of the non genuine purchases would be reasonable and serve the interests of justice. Accordingly, we direct the assessing officer to restrict the addition to 12.5% of the non genuine purchases. Ground raised is partly allowed.
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2018 (12) TMI 1947 - ITAT PUNE
Gain on sale of property - Capital gain computation v/s Business income - addition invoking the provisions of section 50C - whether the sale of property was capital gains or business income? - HELD THAT:- Assessee was carrying the business of construction. The plot which has been sold during the year was part of stock-in-trade in earlier years. The assessee for assessment years 2008-09 to 2010-11 had filed the returns of income in response to notices issued under section 148 of the Act and even the tax audit report, wherever applicable, were filed for all these years and the sale of unit in Gurudev Towers was accepted as business income of assessee. In such scenario, there is no reason to treat the said income differently in the year under consideration.
The assessee had sold one of the units of Gurudev Towers in the year and just because the assessee declared the same as short term capital gains but later pointed out that the same was by way of an inadvertent mistake, then such declaration made by assessee cannot be held against the assessee. It is the duty of Assessing Officer to examine the facts in proper perspective and assess the income in the hands of assessee as per law. CBDT vide Circular No.14(XL-35) of 1955, dated 11.04.1955 had laid down the said directions for AO and the same merits to be applied in assessing the income in the hands of assessee. Accordingly, we find no merit in the grounds of appeal raised by Revenue and we hold that income arising on sale of unit in Gurudev Towers is to be assessed as ‘Income from business’ and the provisions of section 50C of the Act are thus, not applicable.
Addition u/s 68 by assessing peak cash balance in assessee’s bank account - HELD THAT:- AO made the addition which was the peak of cash balance as per Cash Book, but which also included opening cash - The said opening cash balance has been accepted in the hands of assessee and once the same has been accepted in earlier years, there is no merit in including the same as addition under section 68 of the Act. So, upholding the order of CIT(A) in this regard, we dismiss the ground of appeal No.3 raised by Revenue.
Addition made on account of loan received from wife of assessee - said addition was made in the hands of assessee on the ground that wife of assessee was not assessable to tax - HELD THAT:- The assessee has filed complete evidence in this regard before the CIT(A) and even before us that wife of assessee has been taxed to all years and had sufficient funds to make the aforesaid advances. Accordingly, we find no merit in the ground of appeal No.4 raised by Revenue and the same is dismissed.
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2018 (12) TMI 1946 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This IRP is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016 within three days from the date the copy of this Order is received, and call for submissions of claim by the creditors in the manner as prescribed.
The scheme is approved - application allowed.
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2018 (12) TMI 1945 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - allottee or not - HELD THAT:- The term ‘Financial Creditor’ is defined in sub-section (7) of Section 5 of the Code as meaning any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. The term ‘Financial Debt’ is defined in sub-section 8 of Section 5 of the Code and the relevant part of the provision upon which the learned counsel for the petitioner has relied upon during arguments and also stated in the synopsis to the original petition is sub-section 8(f) of Section 5 of the Code.
Having given thoughtful consideration to the contention raised on behalf of the petitioner the contention that the amount invested in the project by the petitioner can be termed as financial debt as defined in Section 5(8)(f) of the Code, cannot be accepted - In order to bring the transaction within the definition of financial debt the basic requirement is that the money was disbursed against the consideration of time value of money which does not exist in the present case.
The learned counsel for the petitioner relied upon the judgment of Hon’ble National Company Law Appellate Tribunal, New Delhi in NIKHIL MEHTA AND SONS VERSUS AMR INFRASTRUCTURE LTD. [2017 (8) TMI 1017 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] in support of his contention. The facts of that case are quite different. In the said case the petitioner entered into different agreements/MOU with the Company (corporate debtor) for purchase of 3 units being a residential flat, shop and office space in the projects. That was therefore the case of a home buyer.
It was further observed that the question whether the appellants came within the relevant clause of one of the Memorandum of Understanding dated 12.04.2008. In the said case the Investor was interested in booking of a shop for a total consideration amount of 46,67,402/- and the mode of payment by cheque was also mentioned. The relevant term of Memorandum of Understanding was that most of the consideration paid as on 19.03.2008 by the Investor was on the condition that the Developer was ready to pay the monthly committed returns to the Investor. The Investors however was not interested to get the monthly return till December 2008 i.e. for 9 months. Accordingly the Developer undertook to make payment of the consolidated amount of 99,600/- less TDS as applicable every calendar month to the Investor as committed return w.e.f. January 2009 up to the date of handing over of the possession - It was thus clear that the appellants had chosen the committed return which the Developer in turn agreed to pay monthly committed returns thereby covered within the definition of the term ‘Financial Creditor’ as the transaction was found to be having the time value of money and thus the case was found to be covered within the definition of Section 5(8)(f) of the Code.
In the present case there is no such term of the assured return or any agreement which may amount to the repayment for the time value of money. Simply because the petitioner has invested the money for the project being a Promoter would not fall within the definition of term ‘Financial Creditor’ under any circumstance. This was not a case of a forward sale or purchase agreement having effect of borrowing rather the petitioner was equally interested in the project to be marked for sale.
Allottee or not - HELD THAT:- The term “Allottee” is defined in clause (d) of Section 2 of RERA Act. It says that allottee in relation to a real estate project, means the person to whom a plot, apartment or buildings, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent - in the facts of the present case, under no circumstance the petitioner can be considered an allottee under RERA Act. As a Promoter, the petitioner is equally interested in the completion of the project to be marked for the purpose of its business and cannot be an allottee at all.
The petitioner is not covered within the definition of the term “Financial Creditor” as defined in Section 5(7) of the Code - petition dismissed.
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2018 (12) TMI 1944 - KARNATAKA HIGH COURT
Depreciation on valuation of investment portfolio - Whether Tribunal was correct in holding that depreciation on valuation of investment portfolio is allowable by treating the investments held by the assessee’s bank as stock-in-trade once the RBI Master Circular read with CBDT Circular No.665 came into force and even when under the provisions of the IT Act depreciation on valuation of investment portfolio was not allowable? - HELD THAT:- Substantial questions of law are covered by the judgment of this Court in the case of KARNATAKA BANK LIMITED VS. ASSISTANT COMMISSIONER OF INCOME TAX [2013 (7) TMI 656 - KARNATAKA HIGH COURT] wherein the very same questions of law was answered in favour of the assessee and against the revenue. Hence, following the aforesaid judgment, the substantial questions of law is answered accordingly.The appeal stands disposed off.
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2018 (12) TMI 1943 - SUPREME COURT
Cancellation of license of Respondent No. 1 in relation to the shop in question - whether the High Court was right in allowing the Respondent No. 1's writ petition? - HELD THAT:- The High Court having held that the order of the Commissioner was not legally sustainable because it was an unreasoned order, it had two options to follow. One, to decide the controversy on merits in the writ petition itself and the other to remand the case to the Commissioner for deciding the appeals afresh on merits in accordance with law by passing reasoned order after dealing with all the contentions raised by the parties in support of their case.
As a consequence, the merits of the case could not be examined either by the Commissioner in appeal properly or the High Court in writ petition - the parties were entitled for a decision of their case on merits by the Appellate Court (Commissioner) and then by the High Court in its writ jurisdiction. In this case, neither the Commissioner could record any finding on the merits and nor the High Court.
The case is remanded to the Commissioner, Lucknow Division, Lucknow (UP) for deciding the appeals afresh on merits - Appeal allowed in part by way of remand.
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2018 (12) TMI 1942 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- On perusal of the Petition and the documents annexed with the Petition, this Bench is of the considered view that there are debts and the Corporate Applicant has committed default in repayment of the debts and the Petition contains the particulars as required u/s 10 of the Code.
Application admitted - moratorium declared.
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2018 (12) TMI 1941 - SUPREME COURT
Validity of criminal proceedings - Appellant had withdrawn an earlier complaint without assigning reasons - transactions of commercial in nature - the ingredients of an offence were absent - remedy of the Appellant lay in filing a civil suit or not - violation of principles of natural justice - HELD THAT:- There is no provision in the Code of Criminal Procedure or any other statute which debars a complainant from making a second complaint on the same allegations, when the first complaint did not lead to conviction, acquittal or discharge.
As held by this Court in JATINDER SINGH & ORS. VERSUS RANJIT KAUR [2001 (1) TMI 961 - SUPREME COURT], it is only when a complaint is dismissed on merits after an inquiry, that a second complaint cannot be made on the same facts. Maybe, as contended by the Respondents, the first complaint was withdrawn without assigning any reason. However, that in itself is no ground to quash a second complaint.
In PRAMATHA NATH TALUKDAR VERSUS SAROJ RANJAN SARKAR [1961 (11) TMI 63 - SUPREME COURT], this Court dealt with the question whether the second complaint by the Respondent should have been entertained when the previous complaint had been withdrawn. The application Under Section 482 Code of Criminal Procedure was allowed and the complaint dismissed by the majority Judges observing that an order of dismissal Under Section 203 Code of Criminal Procedure was no bar to the entertainment of second complaint on the same facts, but it could be entertained only in exceptional circumstances, for example, where the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint or the order passed was manifestly absurd, unjust or foolish or where there were new facts, which could not, with reasonable diligence, have been brought on record in previous proceedings.
Exercise of the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure - Power Under Section 482 Code of Criminal Procedure might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.
Mentioning of reasons for withdrawal of an earlier complaint is also not a condition precedent for maintaining a second complaint. In our considered opinion, the High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. At the cost of repetition, it is reiterated that it was not for the High Court to enter the factual arena and adjudicate the merits of the allegations.
The impugned order of the High Court quashing the complaint is set aside - Appeal allowed.
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2018 (12) TMI 1940 - SUPREME COURT
Effect of consumer disputes - non-arbitrable or not - dismissal of application filed Under Section 8 of the Arbitration and Conciliation Act, 1996 by the appellant - application for extension of time for filing the written statement - NCDRC committed error in rejecting the application of the Appellant filed Under Section 8 of 1996, Act praying for reference to the arbitrator as per Arbitration Clause in the builders agreement or not - application filed Under Section 8 by the Appellant could have been rejected in view of substantial changes brought in the statutory scheme by inserting the words "notwithstanding any judgment, decree or order of the Supreme Court or any Court" in Sub-section (1) of Section 8 - statutory amendment which completely changed the legal position as was earlier existing prior to the aforesaid amendment - whether insertion of words "notwithstanding any judgment, decree or order of the Supreme Court or any Court" Under Section 8(1) by the (Amendment) Act, 2015 legislature intended to do away with the decision of judgments of Supreme Court laying down that Consumer Protection Act being special remedy can be initiated and continued despite there being any arbitration agreement between the parties?.
HELD THAT:- This Court in the series of judgments considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act - Not only the proceedings of Consumer Protection Act, 1986 are special proceedings which were required to be continued under the Act despite an arbitration agreement, there are large number of other fields where an arbitration agreement can neither stop or stultify the proceedings.
The complaints filed under the Consumer Protection Act can also be proceeded with despite there being any arbitration agreement between the parties which have been well settled by the catena of decisions.
Effect and consequences of the above stated position of law consequent to the Arbitration and Conciliation (Amendment) Act, 2015 amending Section 8 - HELD THAT:- This Court has noticed that amendments are expressed to apply notwithstanding any prior judicial precedents, but the scope of amendment Under Section 8(1) was confined to three categories as has been noted in Paragraph No. 29. Amendments Under Section 8, thus, were aimed to minimise the scope of judicial authority to refuse reference to arbitration and only ground on which reference could have been refused was that it prima facie finds that no valid arbitration agreement exists. Notwithstanding any prior judicial precedents referred to Under Section 8(1) relates to those judicial precedents, which explained the discretion and power of judicial authority to examine various aspects while exercising power Under Section 8.
The Legislative intent and object were confined to only above aspects and was not on those aspects, where certain disputes were not required to be referred to arbitration. Can it be said that after amendment Under Section 8(1), the law laid down by this Court in reference to Section 2(3), where large number of categories have been held to be non-arbitrable has been reversed or set at naught. Neither any such Legislature intendment was there nor any such consequence was contemplated that law laid down by this Court in context of Section 2(3) has to be ignored or reversed.
The amendment in Section 8 cannot be given such expansive meaning and intent so as to inundate entire regime of special legislations where such disputes were held to be not arbitrable. Something which legislation never intended cannot be accepted as side wind to override the settled law - this Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora.
There are no error has been committed by the NCDRC in rejecting the application filed by the Appellant Under Section 8 - review petitions are dismissed.
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2018 (12) TMI 1939 - ITAT MUMBAI
Applicability of section 14A on insurance business - Addition u/s 14A r.w.r 8D - As argued applicant being insurance company and his total income is computed as per the provisions of section 44 provisions of section 14A read with rule 8D do not apply - HELD THAT:- As decided in own case [2016 (11) TMI 598 - ITAT MUMBAI] dismiss this ground of appeal of the revenue and direct the AO to delete the addition as held that Tribunal was justify in holding that provisions of section 14A of the Act did not apply to insurance business, even when the assessee has claimed exempted income u/s 10 of the I.T. Act - Decided against revenue.
Disallowance of carry forward of losses from pension business - HELD THAT:- As decided in own case [2016 (11) TMI 598 - ITAT MUMBAI] assessee followed the IRDA Recommendations and accordingly prepared the actuarial valuation report including the surplus or deficit. The Rule 2 prescribes only actual valuation in accordance with Insurance Act 1938. Looking at the issue, we noticed that the computation made by the assessee is in accordance with Rule 2 of the Insurance Act 1938, according to which only AO can base his computation. The Revenue has not contested that the working of actuarial surplus / deficit is not in accordance with Rule 2 of 1st Schedule. Accordingly we are of the view that the CIT(A) has rightly deleted the addition and we confirmed the same.
Disallowance of deduction/exemption claimed by the assessee u/s. 10(34) of the Act in respect of dividend income - HELD THAT:- As decided in own case [2016 (11) TMI 598 - ITAT MUMBAI] the exemption available to any other assessee under any clauses of section 10 is also available to a person carrying on non-life insurance business subject to the fulfilment of the conditions, if any, under a particular clause of section 10 under which exemption is sought. It needs to be emphasized that it is not the case of the Assessing Officer that the assessee had failed to fulfil the condition which attached to the provisions of the relevant clauses of section 10 in respect of which the exemption was allowed. This of course is apart from clause (38) of section 10 where the Assessing Officer had rejected the claim for exemption in the original order of assessment under section 143(3). The Assessing Officer above all was bound by the communication of the CBDT. Having followed that in the order under section 143(3) he could not have taken a different view while purporting to reopen the assessment. Having applied his mind specifically to the issue an having taken a view on the basis of the communication noted earlier, the act of reopening the assessment would have to be regarded as a mere change of opinion which has also not been based on any tangible - Decided against revenue.
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2018 (12) TMI 1938 - ITAT MUMBAI
Addition u/s 14A - section 14A application to insurance business, even when the assessee has claimed exempted income u/s 10 - AO was of the view that the income earned on investment made by a Life Insurance company is income earned on normal business and the same has to be assessed under the head ‘income from business or Profession’ - HELD THAT:- As relying on own case [2016 (11) TMI 598 - ITAT MUMBAI] we hereby accept the argument of learned Authorized Representative to the extent that in the present situation the provisions of s. 14A need not to apply while granting exempt ion to an income earned on sale of investment primarily because of the reason of the withdrawal or deletion of sub- r. 5(b) to First Schedule of s. 44 of IT Act. Once we have taken this view therefore the enhancement as proposed by learned CIT(A) is reversed and the directions in this regard are set aside.
Disallowance on account of carry forward of losses from pension business - HELD THAT:- As relying on own case [2016 (11) TMI 598 - ITAT MUMBAI] the object of inserting section 10(23AAB) as per the Board Circular No. 762, dated 18/02/1998 was to enable the assessee to offer attractive terms to the contributors. Thus, the object of inserting section 10(23AAB) was not with a view to treat the pension fund like jeevan Suraksha Fund outside the purview of insurance business but to promote insurance business by exempting the income from such fund. Therefore, in the facts of the present case, the decision of the Income-tax Appellate Tribunal in holding that even after insertion of section 10(23AAB), the loss incurred from the insurance business under section 44 of the Income-tax Act, 1961 cannot be faulted. - Decided against revenue.
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2018 (12) TMI 1937 - ITAT MUMBAI
Stay petition - Whether assessee has not violated the condition of stay? - HELD THAT:- To verify the correctness of the submission of AR we verify the order sheets of the appeals and find that the contention of ld. AR of the assessee are correct,there is no intentional or deliberate delay in disposal of appeal on the part of assessee. Considering the submission of the assessee, the stay is further extended for three month or till the disposal of appeal whichever is earlier. All the conditions, if any, imposed in earlier orders will remain inforce.
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2018 (12) TMI 1936 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In view of lack of response by way of payment of the amount claimed in default or notice of dispute being issued to the Operational Creditor on the part of the Corporate Debtor, the present application has been preferred under Section 9 of IBC, 2016 read along with attendant rules seeking for the initiation of Corporate insolvency Resolution Process (CIRP) as against the Corporate Debtor wherein an amount of debt in a sum of ₹ 33,44,351/- is claimed as the amount in default which became due and payable after the expiry of 7 days from the date of the respective invoices.
Vide order dated 05.06.2018 it is seen that upon service of the notice of the Application, the Corporate Debtor is being represented by Mr. Rahul Sharma, Advocate. It is seen vide order dated 24.07.2018 the liabilities are been admitted by the Corporate Debtor and hence no reply is filed. Under the circumstances of further non-appearance of Corporate Debtor vide order dated 12.10.2018, this Tribunal was constrained to proceed with the matter exparte in relation to the Corporate Debtor - That the Operational Creditor has filed an affidavit along with the petition as mandated under section 9 (3) (b) of the Insolvency and Bankruptcy Code, 2016 thereby submitting that a demand notice U/s 8(1) of the IBC, 2016 dated 19.03.2018 to which no reply was received raising any dispute of the unpaid operational debt and no payment towards the outstanding debt has been received by the Operational Creditor.
The Corporate Debtor accepted the liabilities and a default of debt due to the Operational Creditor is also in existence remaining unsatisfied as evident prima facie, this Tribunal is of the considered view that this petition requires to be admitted and that CIRP process is required to be initiated against the Corporate Debtor - the Application/ Petition stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date - Application allowed.
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2018 (12) TMI 1935 - SC ORDER
Interpretation of statute - applicability of provisions of the Indian Penal Code - offences also within the purview of the Information Technology Act, 2000 - whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000? - it was held by Bombay High Court that The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology. The subject FIR insofar as the investigation into the offences punishable under the Indian Penal Code is set aside.
HELD THAT:- The Special Leave Petitions are dismissed.
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2018 (12) TMI 1934 - CESTAT KOLKATA
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The amount involved in this case is below the monetary limit of ₹ 20 lakhs which has been notified vide instruction being F. No. 390/Misc./116/2017-JC dated 11/07/2018. The present case falls under exclusion Clause 3 (C) of the National Litigation Policy introduced vide Board’s Instruction dated 17.12.2015 which has been deleted vide Instruction F. No. 390/Misc./116/2017-JC dated 04.04.2018.
Accordingly, the appeal is dismissed under litigation policy.
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2018 (12) TMI 1933 - BOMBAY HIGH COURT
Jurisdiction - Attachment of land owned by respondent No.1 - power and jurisdiction of respondent Nos.3 and 4 to attach the immovable property of respondent No.1, that is mortgaged with the petitioner bank - non-compliance with the notice issued under Section 13(2) of the SARFAESI Act - non-performing assets - HELD THAT:- In the present case, the petitioner and respondent No.1 are the Cooperative Societies, registered under the Maharashtra Cooperative Societies Act. There is no provision under the Maharashtra Cooperative Societies Act similar to Sections 529 and 529A of the Companies Act.
There cannot be any dispute with the proposition that the welfare legislation will have to be liberally construed and the payment of gratuity would be a part of welfare legislation as has been held by the Apex Court in the case of All India Allahabad Bank Retired Employees Association [2009 (12) TMI 1024 - SUPREME COURT]. In the said case, the question before the Apex Court was whether the retired employees of the appellant Bank therein were entitled for the payment of gratuity under the provisions of Payment of Gratuity Act. In that context, the Apex Court had observed that the said remedial statute will have to be liberally construed.
In the present case, the dispute would be about the priority of claim, whether the claim of the petitioner bank would have a priority over the claim under the Payment of Gratuity Act visavis the provisions of the SARFAESI Act. The Apex Court in the case of UNION OF INDIA VERSUS SICOM LTD. [2008 (12) TMI 53 - SUPREME COURT] has unequivocally held that considering the statutory right of the Financial Corporation under the State Financial Corporations Act and the non obstante clause occurring therein, the Corporation had a preferential claim.
The SARFAESI Act has also been amended and Section 26E is introduced with the non obstante clause giving a priority claim over all other debts - The recovery certificate has been legitimately and validly issued. However, pursuant to the said recovery certificate, the secured assets of respondent No.1 with the petitioner bank cannot be attached under the said recovery certificate and as observed above, after the sale of the assets of respondent No.1 and realisation of the dues of the petitioner, if certain amount remains, then respondent Nos.5 to 62 would be entitled for the same.
The attachment over the secured assets with the petitioner bank i.e. the properties of respondent No.1 bearing Gat Nos.44/1, 44/2 and 44/3 is quashed and set aside. However, the prayer of the petitioner for quashing recovery certificate is rejected - Application disposed off.
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