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Showing 101 to 120 of 1721 Records
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2019 (9) TMI 1627 - DELHI HIGH COURT
TP Adjustment - adjustment of AMP expenses - HELD THAT:- The issue relating to adjustment of AMP is covered by the decision of the Court in Sony Ericsson Indio Pvt. Ltd [2015 (3) TMI 580 - DELHI HIGH COURT] and Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT]
We are of the considered opinion that the AI.P of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/AO is not sustainable in the eyes of law. At the same time, we cannot ignore the submission made by the learned DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. In view of the above, we set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. However, if the above decisions of Hon'ble Jurisdictional High Court which is under consideration before the Hon'ble Apex Court is modified or reversed by the Hon'ble Apex Court, then the Assessing Officer would pass the order afresh considering the decision of Hon'ble Apex Court.
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2019 (9) TMI 1626 - ITAT MUMBAI
Granting the Interest u/s 244A - Refund claim - HELD THAT:- Co-ordinate bench of Mumbai Tribunal in assessee’s own case in Indo-Gulf Corporation Ltd. [2017 (1) TMI 1779 - ITAT MUMBAI] while relying upon the decision of Lucknow Bench in assessee’s own case cited [2011 (7) TMI 1322 - ITAT LUCKNOW ]decide the issue in favour of assessee holding that interest under section 244A has to be granted till date of issuance of refund voucher - Decided in favour of assessee.
Interest on the interest - Assessee has fairly conceded that this ground of appeal is covered against the assessee by the decision of Hon’ble Delhi High Court in CIT vs. Engineers India Ltd. [2015 (3) TMI 110 - DELHI HIGH COURT] - Hence, this ground of appeal is dismissed.on the interest.
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2019 (9) TMI 1625 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Handing over the custody of the vehicles to the Resolution Professional - HELD THAT:- The remaining documents and information that the resolution professional needs he shall prepare a detailed memorandum of the same and send it to each one of the respondent. The documents and information be provided by the respondents within three days.
List on 10.10.2019.
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2019 (9) TMI 1624 - KARNATAKA HIGH COURT
Maintainability of petition - petitioner fairly submits that on account of subsequent events, nothing survives for adjudication in this writ petition - HELD THAT:- The writ petition is dismissed as having become infructuous.
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2019 (9) TMI 1623 - ITAT MUMBAI
Penalty levied u/s 271E - assessee has contravened the provisions of section 269T - assessee has repaid loans to various sister concerns through journal entries - HELD THAT:- We observe that in this case the assessee has done the repayment of loans by way of journal entries within the group concerns. As per the assessee the said entries were made out of business considerations and in order to carry on the business of the assessee efficiently and more efficaciously. This is also undisputed that there was no tax evasion by way of repayment of these loans by journal entries. The case of the assessee is squarely covered by the decision of the co-ordinate bench of the Tribunal in assessee’s own case [2018 (7) TMI 2241 - ITAT MUMBAI] as held that issue decided in favour of the assessee by holding that no penalty can be imposed under section 271D of the Act for having accepted loans/deposits through journal entries as there was a reasonable cause. Also see LODHA PROPERTIES DEVELOPMENT PVT. LTD. [2018 (12) TMI 1774 - SC ORDER]
Thus as there exited reasonable cause for accepting the loans by way of journal entries and thus do not find any infirmity in the order of ld. CIT(A). Since the case of the assessee is fully covered as discussed above, we are inclined to uphold the order of Ld. CIT(A) by dismissing the appeal of the revenue.
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2019 (9) TMI 1622 - ITAT KOLKATA
Addition u/s 68 - whether the AO can make an addition of only the share premium u/s 68 while accepting the share application money at face value to be genuine? - HELD THAT:- As relying on M/s. Trend Infra Developers Pvt. Ltd. [2018 (11) TMI 1131 - ITAT KOLKATA] we have to necessarily hold that the addition of only share premium by accepting the face value of the shares as genuine, cannot be sustained. Thus, we uphold the order of the ld. CIT(A) and dismiss this appeal of the revenue.
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2019 (9) TMI 1621 - CALCUTTA HIGH COURT
Deduction u/s 80IB - HELD THAT:- The question of law on the face of it suggests that only factual matters are sought to be raised in the application of Section 80-IB of the Income Tax Act, 1961, by the tribunal. No question of law far less any substantial question of law is involved.
Moreover, this is an appeal of 2009 regarding which the appellant/revenue has taken no steps for enlistment before it was listed in this Court.
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2019 (9) TMI 1620 - JHARKHAND HIGH COURT
Denial of issuance of Form-C - high speed diesel - definition of ‘goods’ given under Section 2(d) of the CST Act - Circular dated 11.10.2017 - HELD THAT:- The issue involved in these matters is no more res integra, in as much as, the same issue was decided by this Court by a detailed Judgement dated 28.08.2019, passed in WP(T) No.6048 of 2017 [2019 (9) TMI 524 - JHARKHAND HIGH COURT] and analogous matters, whereby taking into consideration the stand of Union of India, and the decisions of the various High Courts across the Country, the impugned notification dated 11.10.2017, issued by the State Government, has already been quashed.
Writ applications disposed off.
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2019 (9) TMI 1619 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Direction to maintain status-quo of shareholding pattern of the Company - direction to maintain Status-quo regarding alienation or create any encumbrance in relation to the properties of the 1st Respondent Company - direction to Respondents to produce all primary records/documents as mentioned on or before 12.02.2019 with a specific list and file in the Registry for the purpose of verification by the Petitioners - HELD THAT:- The impugned order shows that while passing the order, the NCLT had heard Respondent Nos. 4, 7, 8 and 9. As it is stated that the present Appellant and other Respondents have also appeared in the Company Petition, it appears appropriate in the interest of justice that the Appellant and other Respondents, who were not heard when the impugned order was passed, should be heard by NCLT to appreciate the grievances of the Appellant and other Respondents, who were not heard.
The impugned order shows that while passing the order, the NCLT had heard Respondent Nos. 4, 7, 8 and 9. As it is stated that the present Appellant and other Respondents have also appeared in the Company Petition, it appears to us appropriate in the interest of justice that the Appellant and other Respondents, who were not heard when the impugned order was passed, should be heard by NCLT to appreciate the grievances of the Appellant and other Respondents, who were not heard - Petition allowed by way of remand.
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2019 (9) TMI 1618 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Validity of Resolution Plan - opportunity to improve the plan value to match with intrinsic value of CD - inter-se bidding - HELD THAT:- Both the valuers have stated that they have assigned zero value to intangible assets since there are warning letters issued by the concerned authorities. Assignment of value lessor than the value shown in the Balance Sheet by the valuer for the tangible assets is based on the present market condition of the assets. Further valuation is a specialised subject dealt by independent persons who are experts having specialised skills and knowledge and this bench cannot analyse valuation to form an opinion upon its correctness, unless contrary is proved based on strong and undisputable evidence.
The Applicant have contended that they are not interested in driving the Corporate Debtor to be sold in slump sale but in the event of auction proceedings under liquidation process, if the Corporate Debtor is sold in slump sale as a going concern, the lenders may get much higher price than the value offered by the valuers. The Applicant conveniently ignored the fact that the Code provides for a particular process in which the CIRP has to be conducted and suggesting a new method which is totally against the Provisions of the Code cannot be appreciated. It is irrelevant to discuss whether a creditor will get more or less in liquidation, at the stage of Resolution, since an argument can never be based on a hypothetical situation.
Inter se bidding - HELD THAT:- It is to be noted that the Committee of Creditors have to approve a Resolution Plan by a voting of 66% of Financial Creditors after considering its feasibility and viability and such other requirement as may be specified by the Board. The CoC is not empowered to select two or more Resolution Plans and to go for inter se bidding among them. In view of this, there is no question of Inter se bidding before the CoC or before the Adjudicating Authority - as held in the land mark judgment of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT]. by the Hon’ble Supreme Court, it is of utmost importance that a CIRP process should end in a period of 270 days. The Code envisages that the whole CIRP process have to be completed within a period 270 days including the extension granted under Section 12 of the Code. Therefore, if a fresh valuation is ordered as prayed for by the Applicant, this will contravene Section 12 of the Code.
No fresh valuation is required in this case - Application dismissed.
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2019 (9) TMI 1617 - GUJARAT HIGH COURT
Seeking grant of Regular Bail - inflation of turnover in order attain enhancement in sanction of Credit Facilities by forging valuable securities - HELD THAT:- The Court having heard both the sides and also having taken into consideration the chronology of events into account, papers of investigation and also case diary presented by the Investigating Officer, is inclined to consider the extension of interim bail rather than grant of regular bail. It has also noted that there had been no untoward incident nor any complaint noticed while the applicant was on interim bail for 3 months from the inputs given by the learned Special Public Prosecutor, on instructions of the Investigating Officer, present before this Court. This Court while granting interim bail on the last occasion has given elaborate reasons for grant of interim bail, which are not to be reiterated and to be construed as the part of this order.
This Court notices that on earlier occasion at the time when the chargesheet is laid, many of these employees have already been examined. In wake of the collection of additional documents by the Investigating Officer, during the course of further investigation, now, these very employees and staff and many more of the company are once again required to be examined by way of their additional statements. That, per se, may not be the ground to reject the request of personal liberty. Already the first version is with the investigating officer - in absence of any such eventuality and with the previous statements of employees of the company already on record, this apprehension at present cannot take shape of reality.
The interim bail of the the present applicant is extended for further period of 4 (four) months, subject to conditions imposed - application allowed.
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2019 (9) TMI 1616 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL 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:- The form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. A default amounting to lacs of rupees has occurred. As per requirement of Section 4 of the Code if default amount is one lac or more then the CIR Process would be issued. The application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional.
As per the judgment of the Hon'ble NCLAT rendered in the case of IDBI BANK LTD. VERSUS ODISHA SLURRY PIPELINE INFRASTRUCTURE LTD. [2019 (1) TMI 1718 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] no third party could intervene at admission stage to oppose admission. Secondly if some homebuyers are satisfied with the breach of obligation then it cannot be a lawful ground to resist those who have vested right to invoke the provisions of Section 7 of the Code. Such a course is wholly unwarranted and would not be sustainable in the eye of law.
Petition admitted - moratorium declared.
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2019 (9) TMI 1615 - DELHI HIGH COURT
Seeking recovery of damage with interest - Claim of indemnity not fulfilled - Defects in a second-hand car - allegation of the plaintiff is that within three months of purchase of the car by him, the car started emitting smoke and burnt down on starting the ignition - HELD THAT:- In general, it is for the plaintiff in a suit to decide against whom it wishes to proceed. The impleadment of a party can be on the basis that it is a necessary or a proper party to the proceedings. A necessary party is one against whom the plaintiff seeks relief or in whose absence an effective decree cannot be passed. A proper party is one against whom relief may not be sought but whose presence is essential for the determination of the questions involved in the suit.
The deletion of a party as a defendant in a suit is therefore possible only upon arriving at a determination that the party is neither a necessary nor a proper party to the suit.
As far as the defendant no. 4 is concerned, the plaint makes out a case of a manufacturing defect which led to the fire in the car. The defendant no. 4 does not deny the fact that it has manufactured the car, but disputes liability on the ground that the warranty had expired. There is a categorical assertion in the plaint that the car was inspected by defendant no. 5, and a report was provided to the plaintiff. In its reply to the application filed by the defendant no. 5, the plaintiff has also averred that the defendant no. 5 had raised an invoice on him for this purpose. In this context, the analysis of the plaint in the impugned order is unsatisfactory. The Trial Court appears to have proceeded primarily on the basis that the plaintiff had failed to adduce any documentary evidence that the vehicle suffered from a manufacturing defect, and that there was no document in support of the plaintiff's case of an inspection by defendant no. 5.
The petitioner has made out a case for interference with the impugned order, which is set aside. The defendants no. 4 and 5 are restored to their original positions in the suit. However, it is made clear that in the event the said defendants are ultimately not found liable to the plaintiff, they will be entitled to seek an appropriate order of costs in their favour - Petition allowed.
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2019 (9) TMI 1614 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Privity of contract between applicant or not - existence of debt and dispute or not - HELD THAT:- There is no document placed on record with respect to any agreement between applicant and corporate debtor - The statutory auditor has personally appeared and admitted that corporate debtor had not availed any services from the applicant and he in good faith to help the applicant, had allotted some work to the applicant and undertook to resolve the issue. The affidavit of the statutory auditor has also been placed on record.
On perusal of the record, a conclusion can be drawn that the statements of the applicant is self-contradictory as in the application by the applicant it has been averred that the applicant was engaged by statutory auditor whereas in the affidavit, the applicant has claimed to render the services upon the request of corporate debtor - it can be inferred that there was no privity of contract between applicant and respondent. Further the corporate debtor has raised dispute of locus of the applicant.
It is very essential to understand that the intent of the legislature is to be kept in mind that this CIRP can be triggered only where the prima facie debt is payable and default has occurred. In the application under section 9 the ‘existence of dispute’ has to be developed in and only on satisfaction that corporate debtor is unable to pay debt, then the CIRP can be triggered and not that simply any amount being crystalized as payable. Therefore, in the present case there is no recovery proceeding payable and cannot be used as debt and brought under umbrella of this Code.
Application dismissed.
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2019 (9) TMI 1613 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI 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:- The Corporate Debtor have filed reply and raised an objection with regard to the authorization for the purpose of filing Application and further objected that the Applicant is not a Financial Creditor to the Corporate Debtor and the Corporate Debtor is liable to offer only the mortgaged assets, in the event if it is held liable to pay. The Corporate Debtor has also stated in its Reply that the Financial Creditor has expressly denied the existence of any security and they are attempting to play a fraud on the Courts and this Tribunal. Based on this, it has been submitted that the Financial Creditor is not entitled to any of the reliefs.
The Corporate Debtor have filed reply and raised an objection with regard to the authorization for the purpose of filing Application and further objected that the Applicant is not a Financial Creditor to the Corporate Debtor and the Corporate Debtor is liable to offer only the mortgaged assets, in the event if it is held liable to pay. The Corporate Debtor has also stated in its Reply that the Financial Creditor has expressly denied the existence of any security and they are attempting to play a fraud on the Courts and this Tribunal. Based on this, it has been submitted that the Financial Creditor is not entitled to any of the reliefs.
The Financial Creditor has fulfilled all the requirements of law including the name of the Resolution Professional for appointment as the IRP - Application admitted - moratorium declared.
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2019 (9) TMI 1612 - SUPREME COURT
Seeking to stay further proceedings before the National Company Law Tribunal - seeking to direct respondent Nos. 5-8 - Union of India-National Highways Authority of India, NHPC Ltd., IRCON International Ltd. and NTPC Limited to pay off amounts due under the Awards of Arbitrators which have not been stayed by any Court - HELD THAT:- List the matter on 04th October, 2019.
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2019 (9) TMI 1611 - SC ORDER
Seeking adjournment on the ground of personal difficulty of the arguing counsel - HELD THAT:- List these matters after two weeks.
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2019 (9) TMI 1610 - MADRAS HIGH COURT
Dishonor of cheque - insufficiency of funds - legally enforceable debt or not - service of statutory demand notice - time limitation - HELD THAT:- Admittedly, the period of limitation for filing a suit is three years from the date of the debt. In this case, the debt was in January 2001 and the period of limitation expired in January 2004. In the opinion of this Court, since a plea of limitation is a legal issue based on proved facts, it can be raised at the revision stage also.
Under Section 18 of the Limitation Act, 1963, if an acknowledgment of liability is given before the expiry of the period of limitation, the period of limitation will stand further extended - Consideration is an essential pre-requisite for a valid contract.
While interpreting a penal provision, the normal rule is that, the interpretation that favours the accused would merit consideration. Of course, there are certain exceptions to this rule. The object of Section 138 of the N.I. Act is to protect the interest of diligent payees in commercial transactions. By virtue of the explanation extracted above, the expression “debt” means legally enforceable debt. It is axiomatic that the cheque should have been issued for a legally enforceable debt. When a cheque is issued for a time barred debt, it does not satisfy this minimum requirement - the cheque which gave birth to a fresh contract resurrects a time barred debt and the dishonour of such a cheque entails prosecution of the drawer under Section 138 of the N.I. Act, is too large a pill for the penal law to swallow.
The cheque in this case has been issued after the expiry of three years from the date of the debt and therefore, the debt in this case was not a legally enforceable debt when the cheque was issued. A fortiori the prosecution founded under Section 138 of the N.I. Act on such a cheque is not maintainable and the accused deserves to be acquitted.
The Criminal Revision Case is allowed.
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2019 (9) TMI 1609 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors/home buyers - time limitation - petition filed within the time period fixed under the agreement or not - HELD THAT:- It is evident that the Financial Creditor has chosen to enter into an agreement, for whatever reasons best known to it, in the project, “Kumar Golf Vistas” for a flat. Thereby virtually, making the Financial Creditor as a Home Buyer taking into consideration Sec 5(8) (f) IBC,20 16 read with explanation provided thereunder and enabling it to maintain petition under IBC,2016 as a Home Buyer in case of default on the part of the Corporate Debtor named as the promoter therein.
In terms of clause 5(i) of the agreement the promoter was required to complete the building within 12 months from the date of signing the agreement and also providing under clause 5(ii) a grace period of 180 days. The price of the flat namely K-708, under clause 3(a) is fixed as ₹ 49,59,375/- - the wordings in clause 5(ii) clearly evidences that the parties have virtually agreed to appropriate the loan amount granted earlier as the consideration for the flat purchase as otherwise the wordings as extracted above is an anomaly. It is pertinent to note that the execution of the agreement dated 1 October 2016 is not denied by the parties. Hence, considering the said agreement to be the fresh bargain as entered into between the parties thereby giving a go by to the earlier MOUs as well as the loan transaction of ₹ 50 Lakhs.
From the records, it is seen that the letter of offer of possession is enclosed dated 7 March 2018 by the Corporate Debtor in its reply. From the terms of the agreement and as given in paragraph supra in relation to time limit for possession to be given, taking into consideration the grace period of 6 months and well as contracted period of 12 months, the possession of flat booked should be given on 1.4.18.(as the agreement dated 1/10/16 stipulated that the possession will be given within 18 months i.e. 12 months plus grace period of 6 months) it is also required to note that the petition was filed on 4.1.2018 well before the period fixed under the agreement dated 1.10.2016.
On the date of filing of petition as a (Home Buyer) no default stands established, more so, when the possession also seems to be offered before the completion of the date of possession as given in the agreement - Petition dismissed.
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2019 (9) TMI 1608 - MADRAS HIGH COURT
Permission for withdrawal of petition - HELD THAT:- Referring to clause 9 of the Minutes, learned counsel appearing for the petitioner sought permission to withdraw the writ petition. Accordingly, the writ petition is dismissed as withdrawn.
Petition dismissed.
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