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Showing 281 to 300 of 23051 Records
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2019 (12) TMI 1409
Deduction u/s 10A - restricting the deduction u/s 10A only to the extent of 70% of the profits instead of allowing 100% - HELD THAT:- Assessee is not exporting the software, but engaged in the body shopping no conclusive evidence was brought on record to support the department’s contention. As per the provisions of section 10A the assessee engaged in the export of software is entitled for deduction of 100% profits derived from the export of software.
In the instant case, by providing various details, information, the assessee has proved that it was in the activity of software export and received foreign exchange on account of software export. No enquiries were made with the importing country, no evidence was brought on record from the STPI to establish that the assessee’s claim is bogus. Therefore, we have no reason to disbelieve the export of software made by the assessee. Thus we hold that the assessee made export of software and entitled for deduction u/s 10A of the Act. - Decided in favour of assessee.
Invoking the provisions of section 10A(7) and 80IA(10) - HELD THAT:- AO has not made out a case for invoking the provisions to section 10A(7) and 80IA(10) and the issue was not referred to the Transfer Pricing Officer. The Ld.CIT(A) also blindly estimated the profits without bringing any comparable case on identical facts to hold that transactions were so arranged as to produce more than the ordinary profits in the hands of assessee.
In the case decided by the coordinate bench in the case of Quick MD [2015 (9) TMI 552 - ITAT HYDERABAD] the profit was 97.40%. The Coordinate Bench decided the issue against the department on similar facts of the assessee’s case. Since the facts are similar and the AO did not make out case, the transactions are so arranged to increase the profits. Hence we are unable to sustain the order of the Ld.CIT(A) to restrict the profits to the extent of 70% instead of allowing 100% of profits for deduction u/s 10A. Accordingly, we set aside the order of the Ld.CIT(A) and direct the AO to allow the deduction of 100% profits as per law. The appeals of the revenue on this issue is dismissed and allow the appeals of the assessee.
Receipts on account of recruitment of personnel - AO has taxed the entire receipts in the hands of VLS IT Systems substantively and protectively in the hands of the assessee firm - HELD THAT:- AO placed reliance on the agreements between the VLS Inc. and VLS IT Systems for making the substantive assessment in the hands of the VLS IT systems. The department has challenged the order of the Ld.CIT(A) for the A.Y.2007-08 to 2010-11. CIT(A) confirmed the substantive assessment in the hands of VLS IT Systems and deleted the protective addition in the hands of the assessee. During the appeal hearing no material was placed before us to reverse the order of the Ld.CIT(A). We uphold the order of the Ld.CIT(A) with regard to confirming the addition in the hands of VLS IT Systems relating to the receipts of manpower selection and dismiss the appeal of the revenue.
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2019 (12) TMI 1408
Service of Demand notice to Corporate Debtor - Applicant represents that efforts were made to serve to the registered office of the Corporate Debtor, however, the same has not been delivered - HELD THAT:- Comparing from the names as given in the Company Master Data as directors to the Corporate Debtor with that of the addresses as disclosed with the e-mail, both the names do not correlate with each other, and therefore, we are unable to ascertain as to whether the Demand Notice was served to the whole time director or designated partner or key managerial personnel as contemplated under the Rules namely Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
It is required to be seen that in relation to the Operational Creditor under the provisions of I&B Code, 2016, in particular, a Notice of Demand is required to be served on the Corporate Debtor in compliance with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In the absence of service of Demand Notice upon the Corporate Debtor as required to be served, taking into consideration, the Demand Notice under Section 8 of the I&B Code, 2016 read with attendant Rules, notice of dispute, if any, cannot be issued by the Corporate Debtor as the Corporate Debtor is prevented from being privy to the Demand Notice as raised or to comply with Demand Notice in relation to the Claim within the period mandated of ten days as contemplated under Section 8 of IBC, 2016.
Taking into consideration Section 9(5)(ii) of the I&B Code, 2016, as the Notice of Demand is not served upon the Corporate Debtor, we are constrained to dismiss the Application.
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2019 (12) TMI 1407
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Operational Creditor themselves have filed a Writ Appeal against the 12(3) Settlement arrived at between the parties, which goes on to show that there exists a dispute.
There is a genuine dispute between the parties and the defence raised by the Corporate Debtor on the grounds of existence of a dispute are real and not spurious, hypothetical, illusory or misconceived.
Petition dismissed.
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2019 (12) TMI 1406
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - financial service provider - existence of debt and dispute or not - HELD THAT:- The definition of financial services as defined under section 3(16) of IBC is not limited to 9 activities as shown at clause (a) to (i) of section 3(16). The aforesaid clauses (a) to (i) are inclusive which means there are other services which come within meaning of financial service and in the instant case the certificate of registration issued by the RBI shows that the Corporate Debtor is non-banking financial company prohibited from taking public deposits. Therefore, it is clear that the Respondent being a non-banking financial company and being a financial service provider does not come in the purview of IBC as it is not a corporate person/ Corporate Debtor.
In view of the judgements of RANDHIRAJ THAKUR DIRECTOR, MAYFAIR CAPITAL PRIVATE LIMITED VERSUS M/S. JINDAL SAXENA FINANCIAL SERVICES PRIVATE LIMITED AND MAYFAIR CAPITAL PRIVATE LIMITED [2018 (10) TMI 913 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the Respondent being a non-banking financial company carrying business of financial institution and thereby it being financial service provider cannot be included within the purview of corporate person/ corporate debtor and the IBC.
Petition dismissed.
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2019 (12) TMI 1405
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor or not - existence of debt and dispute or not - HELD THAT:- The Registry of this Tribunal has issued a notice to the Corporate Debtor intimating about the application filed under the Insolvency and Bankruptcy Code Under Section 7 and directed the Corporate Debtor to appear before the Tribunal on 04.12.2019. The notice to Corporate Debtor was duly served. The Corporate Debtor has not appeared before this Tribunal. Therefore, the case has decided ex parte - The Financial Creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a Corporate Debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I & B Code.
The IRP proposed also has filed a declaration in Form 2 affirming that he is a registered insolvency professional and no disciplinary proceedings are pending against him. Therefore, the application on behalf of Financial Creditor is complete.
Application admitted - moratorium declared.
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2019 (12) TMI 1404
Approval of Scheme of Amalgamation - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Rule 33(4) of the NCLT Rules, 2016 mandates that every petition or application shall be verified by an Affidavit in Form No. NCLT. 6. From the records, it is seen, no affidavit has been annexed along with the Application to verify the contents of the Application.
This Tribunal is of the considered view that slipshod affidavits which are not consistent with the NCLT Rule, 2016 should not be entertained by this Tribunal and in the circumstances, since no affidavit verifying the contents has been annexed with the Application as mandated under Rule 33(4) of the NCLT Rules, 2016, we are constrained to dismiss this Application. However, liberty is granted to the Applicant to file a fresh Company Application after duly complying with the procedures contemplated under the NCLT Rules, 2016.
This Tribunal hereby directs that, the Registry must henceforth strictly scrutinize all the affidavits, all petitions and applications and should reject or note as defective all those which are inconsistent with the mandate of NCLT Rules, 2016.
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2019 (12) TMI 1403
Restoration of the name of Respondent in the Register of Companies - section 252(3) of the Companies Act, 2013 - HELD THAT:- The appeal is filed under section 252(3) of the Companies Act, 2013. While, going through the section 252(3) of the Companies Act, it is found that the instant provision is made when the company is struck of voluntarily on the behest of the Promoter(s)/Director(s), whereas, section 252(1) of the Companies Act, provides that, when the company is struck of by the Registrar of Companies on the failure in filing of statutory returns by the Company - the instant application would not lie under section 252(3) of the Companies Act, 2013; rather, it would lie under section 252(1) of the Companies Act, 2013.
The name of the Company was struck off for continuous non filing of Statutory Returns. Hence, considering the public interest, and to protect the legitimate interest of revenue, the name of the Respondent Company requires to be restored in the Register of Companies maintained by the ROC, Ahmedabad so as to enable the Appellant (Income Tax Department) to proceed further as per rules and in accordance with law.
It would be just and equitable to restore the name of the Company M/s. Insight Projects Pvt. Ltd. in the register maintained by ROC, Ahmedabad, Gujarat as the same is not barred by any law - the present appeal is allowed to the extent of revival of the Company and the ROC Gujarat, Ahmedabad is hereby directed to restore the name of Company viz. M/s. Insight Projects Pvt. Ltd. in the Registrar of Companies - Application allowed.
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2019 (12) TMI 1402
Maintainability of application- initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The period of limitation to claim this payment is three years under Limitation Act, 1963. This application was filed on 04.04.2019. Hence, the Invoices mentioned above are clearly barred by limitation.
Also, it is clear that there are pre-existing disputes between the parties regarding the quality of goods supplied.
Petition dismissed.
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2019 (12) TMI 1401
Approval of the Scheme of Arrangement - Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- The shareholders of the applicant companies are the best Judges of their interest, fully conversant with market trends, and therefore, their decision should not be interfered with by Tribunal for the reason that it is not a part of judicial function to examine entrepreneurial activities and their commercial decisions. It is well settled that the Tribunal evaluating the Scheme of which sanction is sought under Section 230-232 of the Companies Act of 2013 will not ordinarily interfere with the corporate decisions of companies approved by shareholders and creditors.
Right to apply for the sanction of the Scheme has been statutorily provided under Section 230-234 of the Companies Act, 2013 and therefore, it is open to the applicant companies to avail the benefits extended by statutory provisions and the Rules.
It has also been affirmed in the petition that the Scheme is in the interest of all the transferor companies and the transferee company including their shareholders, creditors, employees and all concerned - sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013.
Application allowed.
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2019 (12) TMI 1400
Removal of attachment/charge on the properties - removal of attachment/charge on the properties in question as registered with the revenue department of the Government of Gujarat - prayer to enjoy the properties in question absolutely and without any encumbrance - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The dues of the Government are not considered as a secured debt under Section 3(31) of the Code, do not get precedence over secured creditors under Section 53 and do not fall in Clause(b) of Section 53, but fall under Clause(e) of Section 53 - Hence, it is clear that the amount dues to the Central Govt. and State Govt. shall be paid after the dues of the financial secured creditors are paid. In this case, the admitted dues of the secured creditor were ₹ 139.60 Crores, whereas the liquidation proceeds of ₹ 35.60 crores could satisfy 25.5% of the secured financial creditor's admitted dues. Hence, there is no assets available for payment of dues of the Income Tax Deptt., Govt. of India and State Tax Deptt., Govt. of Gujarat.
Application is admitted to the extent that the concerned Dept. of the State Government is directed to remove the attachment/charge on the properties of the Corporate Debtor under Liquidation; already sold on 26.03.2018 under e-auction by the Liquidator, from the Register maintained by the Mamlatdar, Revenue Deptt., Govt. of Gujarat. The peaceful possession of the said property be handed over to the Buyer, M/s. Haq Steels & Metaliks Ltd.
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2019 (12) TMI 1399
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- The date of default mentioned in the Petition is 01.04.2015 - This claim pertains to transactions in the year 2012-13. The date of default mentioned in the Petition is 01.04.2015. However, this is of no material significance because even if we assume the date of default to be 01.04.2015, the question of limitation has to be considered.
It is not the case of the Operational Creditor that any acknowledgement of liability has been made by the Corporate Debtor or that any payment has been received within the period of limitation, in which case the applicability of section 18 or section 19 of the Limitation Act, 1963, may have a bearing.
Since the petition itself is outside the period of limitation, we refrain from going into the merits of the matter at this stage - application rejected.
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2019 (12) TMI 1398
Maintainability of application - initiation of CIRP - Corporate Debtor failed top make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Balance Sheet dated 31.03.2016 of Corporate Debtor reflects the liability of ₹ 21,262,499/-against the secured loan in the name of IARC restructuring loan as annexed in Annexure-X. Further, the Corporate Debtor in its reply stated that he has filed the last Balance Sheet for the financial year 2017-18 on 09.09.2019 and not filed the Balance Sheets for the year 2015-16 and 2016-2017. On perusal of the documents filed by the Financial Creditor, it is observed by this Hon'ble Tribunal that the financial statements are true and correct and it appears that futile attempt is sought to be made at the behest of the Corporate Debtor that he had not filed the financial statement for the year 2015-2016 and 2016-2017. Hence, the Corporate Debtor is liable to pay the amount of ₹ 21,262,499/-.
Also, it is further observed that the Corporate Debtor and guarantors signed and executed a Balance Confirmation letter confirming a sum of ₹ 2,45,71,976/- was due and payable by the Corporate Debtor to the Financial Creditor as on 31.01.2015. The Corporate Debtor has not replied in its reply for the allegation made by the Financial Creditor regarding execution of Balance Confirmation letter dated 31.01.2015 - It is clear from the letter dated 31.01.2015 that the Corporate Debtor acknowledges and confirms that ₹ 2,45,71976/-was due to the Financial Creditor as on 31.01.2015. Hence, the Corporate Debtor is held liable for the same.
The Hon'ble Tribunal, on perusal of the documents filed by the Financial Creditor, is of the view that the Corporate Debtor defaulted in payment of restructured acquired loan and Financial creditor placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore, the Application Section 7 is taken as complete and within the limitation.
Petition admitted - moratorium declared.
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2019 (12) TMI 1397
Approval of the resolution plan - section 30(6) and 31 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- This Bench being satisfied with the valuation given by the registered valuers, estimation of turnover during the resolution period, repayment schedule to all the creditors, the approval of resolution plan as approved by the CoC with 87.62% voting, approves the resolution plan - this Resolution Plan approved by the COC with the required majority satisfies all the criteria required for approval of Resolution Plan and accordingly the Resolution Plan is approved.
The Resolution Applicant, on taking control of the Corporate Debtor, shall ensure compliance under all applicable law for the time being in force.
The resolution plan has necessary provisions for its effective implementation - The resolution applicant shall obtain the necessary approval required under any law for the time being in force within one year from the date of this order or within such period as provided for in such law, whichever is later.
The resolution plan is approved, which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors, Resolution Applicant and other stakeholders involved in the resolution plan.
This Bench hereby discharges the RP from duties of the RP by submitting all the records maintained by him to the Insolvency and Bankruptcy Board of India as provided under the Insolvency and Bankruptcy Code, 2016 and the regulations thereunder - Application allowed.
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2019 (12) TMI 1396
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has stated that the claim of the Operational Creditor is not valid, inter alia on the ground that there is a preexisting dispute. The Operational Creditor had filed Special Civil Suit No. 209/2013 against the Corporate Debtor, and the same constitutes "prior dispute" as laid down by the Hon'ble Supreme Court in Mobilox Innovations Private Limited vs. Kirusa Software [2017 (9) TMI 1270 - SUPREME COURT] - This argument is untenable, because the remedies under the IBC are in addition to, and not in derogation of, the remedies available to the Operational Creditor under any other law. In any case, that suit has been filed by the Operational Creditor and not by the Corporate Debtor, and hence cannot constitute a case of "prior dispute."
Differing stands of Corporate Debtor - HELD THAT:- There is no explanation for the differing stands taken by the Corporate Debtor in the letter dated 24.05.2012 and in the reply to the Demand Notice dated 12.12.2018 and in the reply to the Petition dated 03.06.2019. If the material was custom-made, then it could not have been diverted to any other customer. If it was, then it could not have been sold as scrap - So, the contradictory stands taken by the Corporate Debtor is not tenable and therefore deserves to be rejected.
Refund of advance amounts paid - HELD THAT:- The claim has to be in connection with the provision of goods or services including employment, or a debt in respect of the payment of dues arising under any law for the time being in force. In the present case, payment of advance by the Operational Creditor would not satisfy the definition of "Operational Debt" under the IBC - In the present case also, the claim relates to non-payment of advance money and hence the same is not covered under the definition of "Operational Debt".
Time Limitation - HELD THAT:- Since the date of default even according to the Operational Creditor is 22.09.2014, and applying the principles laid down by the Hon'ble Supreme Court in B.K. Educational Services Private Limited [2018 (10) TMI 777 - SUPREME COURT], the present petition under the IBC is barred by limitation.
The application fails the twin tests of merit and limitation - application dismissed.
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2019 (12) TMI 1395
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor or not - existence of debt and dispute or not - HELD THAT:- It is found that the applicant had issued reminders calling upon the respondent to make payment of the outstanding. It appears that having failed to get any reply from the respondent, the applicant was compelled to issue demand notice under section 8 of I & B Code on 27.03.2019. Record also shows that the respondent has not raised any reply/dispute against the demand notice so issued by the applicant. Record also shows that pursuant to order dated 16.07.2019, the petitioner had made paper publication in Financial Express on 05.10.2019.
This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of IB Code. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force.
It is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - Petition admitted - moratorium declared.
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2019 (12) TMI 1394
CIRP Process - claim was lodged in Form CA as already brought forth on 08.10.2018 and the Resolution Professional acknowledged the said lodging of the claim by an email dated 13.11.2018 - HELD THAT:- It is seen that the document bearing 572/2011 is registered with Sub-registrar, T. Nagar, which is sought to be relied upon for the purpose of conveyance of undivided share of land as prescribed in the Schedule of property in the said registered documents. In addition, the Memorandum of Agreement as entered into between the parties dated 15.03.2011 is also sought to be relied on by the Applicant to establish that the monies which are figuring in the respective Sale Agreement or Memorandum of Agreement have been duly paid to the Corporate Debtor, and in the said circumstance, the Claim cannot be rejected and that the payment which is also extracted hereinabove by way of tabulation in Para supra are in relation to the purchase of properties, and hence, it is appropriate that the Applicant should be categorised as 'Home Buyer' and that the Resolution Professional was wrong in not entertaining the Claim as filed under Form CA meant for the Home Buyers.
In any case, it is also pointed out by the Learned Counsel for the Resolution Professional that in relation to the T Nagar property it is not the asset of the Corporate Debtor presently as the same has been allotted and sold a long time back much prior to the initiation of CIRP. Hence, the claim also seems to suffer from delay and laches on the part of the Applicant in enforcing the claim. In the circumstance, on this count also, the delay on the part of the Applicant to exercise its remedy as against the Corporate Debtor also disentitles the Applicant to lodge the claim. From all the documents filed, it is seen that it is of the year 2011 and if at all any action based on the said documents for consideration is taken, should have been taken within a period of three years from the date of the said agreement which the Applicant has miserably failed.
Application dismissed.
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2019 (12) TMI 1393
Liquidation of the Corporate Debtor - section 33(1) (a) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is found that no viable and feasible Resolution Plan has been received so far and Corporate Debtor is also not operational. Therefore, the CoC has decided to recommend for liquidation of the Corporate Debtor vide its 7th meeting dated 02.08.2019. It is also to be noted that this Adjudicating Authority has no jurisdiction to interfere in the commercial wisdom of the CoC.
Application filed by the RP under Section 33 of the IB Code, 2016 is allowed and the Adjudicating Authority passes an order for initiation of liquidation of the Corporate Debtor viz., M/s. Gupta Dyeing and Printing Mills Pvt. Ltd. Mr. Manish Kumar Bhagat shall act as the Liquidator for the purpose of liquidation of the Corporate Debtor.
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2019 (12) TMI 1392
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The applicant has attached the copy of Bank statements issued by M/s. Punjab National Bank, in compliance with the requirement of Section 9(3)(C) of the IBC 2016 - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
On perusal of the record it is clear that the default has occurred on 25.07.2016 when the last invoice fell due. Hence, the claim is not time barred and the present application is well within the limitation period.
The present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, more so when the debt has remained undisputed in spite of service of section 8 notice and the present application. Requirements under section 9(5) of the Code are fulfilled. Hence, the present application is admitted.
Application admitted - moratorium declared.
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2019 (12) TMI 1391
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- The petition is barred by limitation. The Tribunal observed that "The right to sue" expired in the year 2018 as the last installment of the unsecured loan was made on 29.12.2015. Hence, the present petition being filed in August, 2019 is barred by limitation, not being within three years from the date of the cause of action.
This Bench is of the view that the prayer for initiating Corporate Insolvency Resolution process against the Corporate Debtor is not sustainable as the present application is barred by limitation - Petition dismissed.
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2019 (12) TMI 1390
Maintainability of petition - initiation of CIRP - failure on the part of the Corporate Debtor in making payment of the amount claimed under the Demand Notice - Operational Creditor - HELD THAT:- In relation to the franchise agreement under which the claim is made herein, already it is up for consideration before the Hon'ble High Court of Judicature at Madras and taking into consideration the provisions of IBC, 2016, where there is an existence of a dispute between the parties in regard to the claim amount prior to the filing of the Petition, this Tribunal will not be in a position to entertain and go into the same.
Petition dismissed.
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