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Showing 141 to 160 of 14346 Records
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2020 (12) TMI 1256 - DELHI HIGH COURT
Giving on lease of Oxygen plant to respondent - Obligation to pay rent on part of the respondent as per the Lease Agreement - seeking restraint on Respondent from utilizing the Leased Equipment situated at the integrated steel plant, Meramandli, Odisha without making payment of the Lease rentals - seeking to direct respondent to immediately pay the entire defaulted amount - mail plea is that the entire transaction leading to the lease agreement is not at arm's length - pending arbitration proceedings - HELD THAT:- There is a clear stipulation in the Lease Agreement for payment of lease rent at ₹ 15 Crores till March 31, 2020 and ₹ 18 Crores w.e.f. April 01, 2020, the said agreement is an admitted document of the parties. It is also an accepted position that the respondent is using the Oxygen Plants. The lease rentals received from the respondent are utilised for servicing the loans taken by petitioner from the Lenders and there is obligation to pay the GST/TDS to the concerned authorities as well. If that be so, there is a prima facie liability on the respondent to pay to the petitioner/Lenders for the usage of the Oxygen Plants in the manner stipulated in the Lease Agreement i.e., Clause 5.1 read with Schedule 2.
Despite specific obligation, the petitioner has failed to undertake routine maintenance measures of the Oxygen Plants and keep the same in good working condition in accordance with best industry practice.
There is a dispute between the parties as to who is responsible for the upkeep of the Oxygen Plants. Prima facie, Dr. Singhvi and Mr. Nigam are right in relying on Clause 6.1.(vii) of the Lease Agreement and Clause 6.1.7 of the Common Loan Agreement that the obligation in on the petitioner, but there is a dispute as to whether the Oxygen Plants actually required any maintenance.
It is clear that ₹ 18 crores being the contractual amount w.e.f. April 01, 2020, the said amount is prima facie payable by the respondent atleast till such time the parties seek adjudication of the disputes as per the contractual provisions - So, it is directed that the respondent shall pay the arrears of lease rent (net of all taxes/TDS), after adjusting the amount already paid, to the lead Lender Bank with applicable interest within six weeks from today.
Petition allowed.
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2020 (12) TMI 1255 - ITAT BANGALORE
TP Adjustment - Comparable selection - negative working capital adjustment - HELD THAT:- Referring to assessee ITeS company companies functionally dissimilar with that of assessee.
Negative working capital adjustment - There is no allegation in the case of the assessee that the assessee has used any borrowed fund for working capital or there is any risk of money lost in credit time provided to the customers. Accordingly, we hold that negative working capital adjustment is not justified in the case of the assessee.
Inclusion of ICRA Online Ltd. - CIT(A) has analyzed the functional details and come to the conclusion that ICRA Online Ltd. is a Knowledge Process Outsource (KPO) company which is different from Business Outsource Company (BPO) which is the line of business of the Assessee in the present case. Hence, we uphold the exclusion of this company from the list of comparable companies.
I-Gate Global Solutions Ltd.- We uphold the exclusion of this company from the list of comparable companies by applying the turnover filter.
Determining ALP under TNMM - As correct approach would be to look at the costs incurred by the assessee only and should not impute any additional cost as done by TPO, which indirectly enhances the ALP artificially. The contrary view expressed in decision cited by the learned DR takes the view that Working capital adjustment is required in all cases as any credit extended to customers will result in cash locked up and will result in the assessee borrowing money from the banks and incur additional cost towards interest on these borrowings which cost will have effect on the price charged.
It is the reasoning in these decisions that under TNM method that every ingredient of profit margins of comparable companies are analysed, whether it is positive or negative. The decision proceeds on the basis of effect on price owing to working capital requirement. We are of the view that working capital adjustment itself is computed on the basis of outstanding current assets and liabilities at the year end. It means that other things being equal, an entity having higher working capital will incur more interest cost which will reduce profitability. Hence no importance shall be given to pricing aspect. Since the assessee does not have any working capital risk, the question of negative working capital does not arise.
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2020 (12) TMI 1254 - SC ORDER
Maintainability of application - sale of paratments - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor or not - provisional allotment of an under construction of apartments - HELD THAT:- Issue notice.
Counter affidavit, if any, be filed within a period of four weeks from today - List the appeal on 27 January 2021.
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2020 (12) TMI 1253 - NATIONAL COMPANY LAW TRIBUNAL INDORE BENCH AT AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - HELD THAT:- It is not in dispute that all the supply has been made by the Operational Creditor in the month of July 2015. It is also not in dispute that the Operational Creditor is operating in business to business segment i.e. it is not in case where such supplies are being made to numbers of clients on specific date or from different locations. Therefore, there are no substance in the claim of the Operational Creditor that date of Invoice and number of Invoice could not matched. Even, otherwise, the supply has been made in the month of July 2015, as stated earlier, and the application has been filed on July 18, 2019, hence, aspect of limitation is to be seen.
No material has been brought on record to show that name of the Corporate Debtor has been changed. In view of the fact that the Corporate Debtor has attached its Annual report for 2018-19 in the name and style of M/S, Girdharilal Sugar and Allied Industries Limited, the name of the Corporate Debtor remained the same, Therefore, the said payment could not be said to have been made by the Corporate Debtor. Even otherwise a paltry payment, assuming to have been made by the Corporate Debtor, cannot extend the limitation period for all debts as each supply is an independent contract. The said petition is, therefore, not maintainable.
Petition not maintainable and is dismissed.
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2020 (12) TMI 1252 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of debt and dispute or not - time limitation - HELD THAT:- It is noted that the last date of the transaction in the Bank account is on 27.01.2016 and an Affidavit is filed with a copy of the Acknowledgment of debt dated 20.11.2018 signed by the two directors of the Respondent/Corporate Debtor. In view of this and in line with the decision of Hon’ble NCLAT in Yogesh Kumar Jaswantlal Thakkar Vs. Indian Overseas Bank, [2020 (9) TMI 582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the application filed under section 7 of IB Code filed on 06.06.2019 is within time.
In an affidavit filed on 08.10.2020 the respondent -Corporate Debtor has submitted that the additional affidavit filed by the petitioner should not be taken on record at such belated stage and stated the acknowledgment letter signed by Mr Kamlesh G. Pansuriya is forged and it was never signed by Mr. Kamlesh G. Pansuriya. The petitioner also enclosed a copy of the complaint sent to the police sub-Inspector by Post along with the Affidavit - it is noticed that the acknowledgment of the debt is signed by two directors and not one and on the face of it, the signature matches with that of the two directors who have signed the loan documents. Hence, the objections of the respondent is not sustainable.
This Adjudicating Authority is satisfied that default has been committed by the Corporate Debtor in repayment of loan amount to the Bank. The petition is complete - Petition admitted - moratorium declared.
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2020 (12) TMI 1251 - KERALA HIGH COURT
Seeking to call for records - seeking direction commanding the respondents 2 & 3 to refrain from taking the management and possession of the assets of the company of the petitioners - HELD THAT:- The date mentioned for taking over the management and possession of the assets of the company of which the petitioners are Directors is already over and moreover the order impugned Ext.P2 is an appealable one.
Petition dismissed.
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2020 (12) TMI 1250 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Seeking exclusion of lock down period from the Corporate Insolvency Resolution Process - Section 60(5) of IBC, 2016 read with Regulation 40(C) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The prayer for excluding the period from 22.03.2020 to 31.10.2020 (224 days) from the period of Corporate Insolvency Resolution Process is allowed. The Resolution Professional is directed to complete the Corporate Insolvency Resolution Process on or before 05.01.2021.
Application disposed off.
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2020 (12) TMI 1249 - ITAT KOLKATA
MAT Computation u/s 115JB - computation of book profit/MAT against the action of AO in adding back the provision for diminution in investment and provision for NPA (Non-Performing Assets) - Whether clause (i) of Explanation (1) to sub-section (2) of section 115JB of the Act could be attracted in the facts of this case? - HELD THAT:- Provision for diminution in Investments would amount to an actual “write off” of Provision from the Assets side and therefore would not attract clause (i) of the Explanation to subsection (2) of section 115JB of the Act as held by the Hon'ble Gujarat High Court in the case of Vodafone Essar [2017 (8) TMI 451 - GUJARAT HIGH COURT] since Assets side of the Balance Sheet has also been accordingly reduced in the present case of the assessee, so, we agree that provision for diminution in investment was not a mere provision but it was actual write off and so, clause (i) of Explanation (1) of sub-section (2) of section 115JB of the Act is not attracted to the facts of this case and so we uphold the action of Ld CIT(A) on this issue.
Non-performing asset - Not only a mere 'Provision for Non-Performing Assets' was created by the assessee by debiting the Profit and Loss account but simultaneously the corresponding amount from ‘Loans and Advances’ shown on the Asset side of the Balance Sheet was also reduced/adjusted. In other words, the ‘Loans and Advances’ were recorded in the books as net of provision. Thus, in view of the above facts, the said Provision for diminution in non-performing assets would amount to an actual write off of Provision from the Assets side and therefore would not get attracted by clause (i) of the Explanation to subsection (2) of section 115JB of the Act as held by the Hon'ble Gujarat High Court in the case of Vodafone Essar [2017 (8) TMI 451 - GUJARAT HIGH COURT] since the Assets side of the Balance Sheet has also been accordingly reduced in the present case of the assessee. Thus, we note that the accumulated closing provision of ₹ 2620.53 million was reduced from the current assets, loans and advances which are evident from page 36 of the paper book, which we find to be correct. Thus, the said provision was an actual write off and, therefore, it does not attract clause (i) of Explanation (1) of section 115JB of the Act. - Decided in favour of assessee.
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2020 (12) TMI 1248 - MADRAS HIGH COURT
Levy of service tax - commission paid to the Petitioner as foreman of chit fund business - period from April 2014 to March 2015 - HELD THAT:- The Hon'ble Supreme Court of India in UNION OF INDIA AND ORS. VERSUS M/S. MARGADARSHI CHIT FUNDS (P) LTD. ETC [2017 (7) TMI 224 - SUPREME COURT] has held that service tax cannot be levied on the foreman of chit fund business for the period from 15.06.2007 to 14.06.2015.
The Respondent shall not be entitled to recover the service tax demanded from the Petitioner in the impugned order - Petition disposed off.
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2020 (12) TMI 1247 - NATIONAL COMPANY LAW TRIBUNAL, JAIPUR
Seeking appropriate directions against the Resolution Professional to reconstitute the CoC - Section 21 of I&B Code - HELD THAT:- In Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT], JIL, which is the Corporate Debtor, created mortgage of its properties to the Bank, as collateral security of the debt of its holding company JAL and Hon'ble Apex Court held that the lenders of JAL could not be categorized as Financial Creditors of JIL for the purpose of the Code. Whereas in Ascot Reality Private Limited [2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] the Corporate Debtor given guarantee for repayment of the debt.
A careful examination of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] and Ascot Reality Private Limited [2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] shows that the facts in Ascot Reality Private Limited (supra) are akin to the facts in the instant IA and clearly support the decision taken by the Resolution Professional in categorising the respondent No.2 as Financial Creditor and giving voting rights basing on its claims.
There are no merits in the application - application dismissed.
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2020 (12) TMI 1246 - MADRAS HIGH COURT
Disqualification of directors - Seeking permission to get reappointed as Directors of any Company or appointed as Directors in any company without any hindrance - HELD THAT:- The Hon'ble Division Bench in Meethelaveetil Kaitheri Muralidharan V. Union of India [2020 (10) TMI 595 - MADRAS HIGH COURT] dealt with the powers of the RoC in the light of Sections 164 and 167(1) of the Companies Act, 2013 and Rule 14 of the Companies (Appointment and Qualifications of Directors) Rules, 2014 and also has elaborately considered as to whether the RoC is entitled to deactivate the Director Identification Number (DIN) by referring to the Rules 19, 10 and 11 of the said 2014 Rules and held that As a corollary to our conclusion on the deactivation of DIN, the DIN of the respective directors shall be reactivated within 30 days of the date of receipt of a copy of this order.
Petition allowed.
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2020 (12) TMI 1245 - MADRAS HIGH COURT
Seeking direction to Assistant Commissioner/R1 to remove the alert operating against the petitioner in respect of demand notice - HELD THAT:- The learned Senior Standing Counsel for the Customs Department assures the Court, on instructions, that the alert will be removed forthwith. This is recorded. With this, the mandamus sought for stands achieved.
The writ petition disposed off.
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2020 (12) TMI 1244 - ITAT DELHI
Addition of interest of enhanced compensation - amount having been received u/s 28 of the Land Acquisition Act - diversified decisions - HELD THAT:- It is a settled law that Statute must be interpreted according to the intention of the legislature and the court should act upon the true intent of the legislation while applying the law and its interpretation. If a statutory provision is open to more than one meaning, the Court has to choose the interpretation which represents the intention of the legislature. In the present case the Department circular number 5/2010 dated 3/6 / 2010 clearly demonstrates the intention of the legislature. Accordingly we hold that interest on u/s 28 of the land acquisition act, 1894 being part of the compensation shall be treated as a tax free in the case of an individual and HUF u/s 10 (37) if transfer is of an agricultural land. In view of above facts and judicial precedence we hold that the interest received by the assessee u/s 28 of the land acquisition act is not taxable. Ground of the appeal of the assessee are allowed.
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2020 (12) TMI 1243 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Approval of scheme of amalgamation - Seeking modification of earlier order - directions for reconvening and holding of the meetings of Equity Shareholders and Unsecured Creditors of the Applicants - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 1242 - ITAT MUMBAI
Reopening of assessment u/s 147 - non disposing off the objections as put by assessee - HELD THAT:- As could be seen from the decision of FOMENTO RESORTS AND HOTELS LTD., [2006 (11) TMI 645 - BOMBAY HIGH COURT] even if Assessing Officer disposed off the objections raised by the assessee in the Assessment Order while completing the re-assessment that is not in compliance with the decision of GKN Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] in other words the Assessing Officer shall pass a separate speaking order disposing off the preliminary objections raised by the assessee in reopening the assessment. In the case on hand before us since Assessing Officer failed to dispose off the preliminary objections of the assessee by way of a separate order, respectfully following the decision in the case of Fomento Resorts & Hotels Ltd. v. ACIT [2006 (11) TMI 645 - BOMBAY HIGH COURT] we quash the re-assessment order passed u/s. 143(3) r.w.s. 147 of the Act for the A.Y. 2011-12. The preliminary ground raised by the assessee is allowed.
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2020 (12) TMI 1241 - SUPREME COURT
Rebate/deduction from electricity duty offered under the Jharkhand Industrial Policy, 2012 - prospective or retrospective effect of notification dated 8 January 2015 issued by the State government in its Department of Commercial Taxes - whether to be in effect from 1 April 2011, when the Industrial Policy 2012 was enforced with retrospective effect? - rebate/deduction from electricity duty in terms of the representation held out in the Industrial Policy 2012 - doctrine of promissory estoppel - whether the Respondent is entitled to claim a rebate or deduction of 50 per cent of the amount assessed towards electricity duty for FYs 2011-12, 2012-13 and 2013-14?
A State in breach of policy commitments - HELD THAT:- It is time for the State government to take notice of the observations of the High Court in regard to administrative lethargy. If the object of formulating the industrial policy is to encourage investment, employment and growth, the administrative lethargy of the State apparatus is clearly a factor which will discourage entrepreneurship. The policy document held out a solemn representation. It contemplated the grant of a rebate/deduction from the payment of electricity duty not only to new units but to existing units as well who had or would set up captive power plants. The State, in the present case, held out inter alia a solemn representation in terms of Clauses 32.10 and 35.7(b) of the entitlement of the exemption for a period of five years from the date of production - The State government was evidently inclined to grant the exemption. This is not a case where due to an overarching requirement of public interest, the State government decided to override the representation which was contained in the Industrial Policy 2012.
Building on Motilal Padampat [1978 (12) TMI 45 - Supreme Court] - HELD THAT:- The policy contained a provision for monitoring and reviewing and envisaged that all departments and organizations would issue a follow-up notification to give effect to the policy within one month. This was similar to Clause 38(b) of the policy in the present case. No notification was issued by the State of Bihar to give effect to the industrial policy, which lapsed on 31 August 2000. The claim to sales tax exemption by the unit was rejected by the State government on the ground that it had decided not to grant an incentive to a sick industrial unit. A follow-up notification was issued during the pendency of the case before this Court.
Promissory estoppel - origins and evolution - HELD THAT:- This Court has given an expansive interpretation to the doctrine of promissory estoppel in order to remedy the injustice being done to a party who has relied on a promise. In Motilal Padampat [1978 (12) TMI 45 - Supreme Court], this Court viewed promissory estoppel as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English Law.
From estoppel to expectations - HELD THAT:- Under English Law, the doctrine of legitimate expectation initially developed in the context of public law as an analogy to the doctrine of promissory estoppel found in private law. However, since then, English Law has distinguished between the doctrines of promissory estoppel and legitimate expectation as distinct remedies under private law and public law - Consequently, while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of promissory estoppel has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its public functions.
Indian Law and the doctrine of legitimate expectations - HELD THAT:- The Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution - the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined Under Article 14 finds concrete expression.
Expectations breached by the State of Jharkhand - HELD THAT:- The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State government did as a matter of fact, issue a statutory notification Under Section 9 but by doing so prospectively with effect from 8 January 2015 it negated the nature of the representation which was held out in the Industrial Policy 2012. Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before this Court for the delay in issuing a notification - the State had made a representation to the Respondent and similarly situated industrial units under the Industrial Policy 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50 per cent rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, it is held that such a course of action by the State is arbitrary and is violative of Article 14.
Assessment and recourse to Article 226 - HELD THAT:- The fact remains that so long as the Clause in the exemption notification granting it prospective effect continued to hold the field, the assessing officer as a creature of the statute was bound to enforce the terms of the exemption and accordingly denied any exemption for a period prior to 8 January 2015. The only remedy which was available to the Respondent, was to challenge the terms of the exemption notification which it did by instituting writ proceedings before the High Court Under Article 226.
The argument of delay - HELD THAT:- The delay of the Respondent in filing a writ petition by itself should not defeat the claim unless the position of the State has been so altered that it cannot be retracted on account of a lapse of time or the inaction of the writ Petitioner. The State has not in the present case either pleaded or argued any hardship if the Respondent were to be granted relief - the Petitioner has come before this Court due to arbitrariness in State action which led to the non-fulfillment of their legitimate expectations.
The defence of unjust enrichment - HELD THAT:- Nor is the court inclined to accept the plea of unjust enrichment - the High Court has not ordered a refund at all since the duty has been paid. The Respondent cannot be deprived of an adjustment of the excess duty paid. Further, the State's submission that there was no pleading by the Respondent in the High Court on whether the amount being claimed as rebate/deduction had been passed on by the Respondent to its customers is factually incorrect. In the writ petition filed before the High Court, the Respondent specifically asserted that the burden of differential amount of electricity duty, realized by the State from the Respondent herein, was not passed by the latter to its customers, either directly or indirectly or in any other manner.
Respondent is entitled to a rebate/deduction from electricity duty - It is necessary, however, to clarify that the Respondent would not be entitled to a rebate/deduction for FY 2011-12. In terms of Clause 35.7(b) of the Industrial Policy 2012, the entitlement ensues from the financial year following the commencement of production. The Respondent commenced production on 17 August 2011. Hence, the order of the High Court would have to be confirmed for FYs 2012-13 and 2013-14.
Appeal disposed off.
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2020 (12) TMI 1240 - ITAT KOLKATA
Revision u/s 263 - addition u/s 68 - Bogus LTCG - AO failed to identify the purpose for which the assessee’s return was selected for scrutiny and thereafter the AO has not taken into consideration the investigation report about penny stock and especially the price variation of scrip thus the AO failed to conduct proper investigation on the claim of LTCG and thus there was non-application of mind by AO, resulting in passing an erroneous assessment order as well as caused prejudice to the interest of Revenue - HELD THAT:- We find from queries raised by AO and replies given by the assessee on the issue of LTCG on sale of shares which we have discussed in detail which is not being repeated for the sake of brevity and to avoid repetition, we find that AO has conducted enquiry based on investigation report and after having collected all the information and having gone through the documents and having carried out cross-verification from broker and seller of scrip, the AO issued another letter dated 26.12.2017 in respect of the LTCG claim of the assessee, wherein question regarding price variation of ₹ 15/- to ₹ 565/- per share of M/s KPL [question number 8] and the investigation report [question number 10] was asked, the AO being satisfied with the replies, have taken a plausible view which is in line with the views expressed by various Hon’ble High Courts and this Tribunal.
AO’s view which was taken by him, after enquiry as discussed supra cannot be termed as unsustainable view in the eyes of law and since AO’s view is plausible view it could not have been interfered by Ld. Pr. CIT as held by Hon’ble Supreme Court in Malabar Industries Ltd. [2000 (2) TMI 10 - SUPREME COURT] - since the Ld. Pr. CIT failed to show/demonstrate that the order of the AO was erroneous in respect of accepting the claim of LTCG, we find that the condition precedent necessary to invoke the revisional jurisdiction to u/s 263 of the Act is absent and, therefore, we are inclined to allow the appeal of the assessee
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2020 (12) TMI 1239 - DELHI HIGH COURT
Rectification u/s 254 - Tribunal erred in failing to decide the application for additional evidence filed by the appellant under Rule 29 of the ITAT Rules - HELD THAT:- Issue Notice. Mr. Raghvendra Singh, learned senior standing counsel accepts notice. He states that he has not been served with an advance copy of the appeal. Let a soft copy of the present appeal be served upon him during the course of the day.
List on 17th December, 2020. The order be uploaded on the website forthwith
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2020 (12) TMI 1238 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU
Approval of scheme of Amalgamation - seeking to dispense with the meetings of the Equity Shareholders of both the Applicant Companies and Unsecured Creditors& Secured Creditors of the Applicant Company - Sections 230 & 232 of the Companies Act, 2013, R/w Rule 3(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Companies have disclosed material information with regard to the Scheme in question, and in the normal circumstances, it is the prerogative of concerned Companies to evolve a Scheme suitable to them and the Tribunal is only empowered to examine the Scheme broadly, whether the Scheme is prepared in accordance with law and the interest of all the stakeholders of Companies involved are taken care of by affording due notice of Scheme, etc. The Scheme in question, prima facie found to be in the larger interests of the Companies involved and their stakeholders.
The Tribunal is empowered, under Section 230(9) of the Companies Act, 2013, to dispense with calling of a meeting of creditors or class of creditors, where such creditors or class of creditors, having at least ninety per cent value, agree and confirm, by way of affidavit, to the Scheme of compromise or arrangement. Therefore, there is no necessity to convene the meetings for the same purpose and the Tribunal can allow the Application as prayed for, on the principle of ease of doing business.
Application disposed off.
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2020 (12) TMI 1237 - SUPREME COURT
Interpretation of stature - whether the provisions of the MMDR Act explicitly or impliedly exclude the provisions of the Penal Code (IPC) when the act of an Accused is an offence both under the Penal Code and under the provisions of the MMDR Act?
HELD THAT:- Section 22 of the MMDR Act would show that cognizance of any offence punishable under the MMDR Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorised in this behalf by the Central Government or the State Government. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance.
In the case of MANOHAR M. GALANI VERSUS ASHOK N. ADVANI AND ORS. [1999 (11) TMI 899 - SUPREME COURT], when the bar Under Section 195 Code of Criminal Procedure was pressed into service and the High Court quashed the complaint and enquiry on the basis of the FIR registered by the complainant, while setting aside the order passed by the High Court, this Court accepted the submission on behalf of the State that the bar Under Section 195 Code of Criminal Procedure can be gone into at the stage when the court takes cognizance of the offence and investigation on the basis of the information received could not have been quashed and an investigating agency cannot be throttled at this stage from proceeding with the investigation particularly when the charges are serious and grave.
The High Court has not committed any error in not quashing the order passed by the learned Magistrate and not quashing the criminal proceedings for the offences Under Sections 379 and 414. It is required to be noted that the learned Magistrate in exercise of the suo motu powers conferred Under Section 156(3), Code of Criminal Procedure directed the concerned In-charge/SHO of the police station to lodge/register the crime case/FIR and directed initiation of investigation and directed the concerned In-charge/SHO of the police station to submit a report after due investigation.
As the appeal preferred by the State on the premise that the order passed by the learned Magistrate, confirmed by the High Court, affects the powers of the authorised person to compound the offence, in exercise of powers Under Rule 53 of the 1996 Rules and Rule 18 of the 2006 Rules is concerned, the same is absolutely misconceived. By the order passed by the learned Magistrate, confirmed by the High Court, by no stretch of imagination, it can be said that directing to file the first information report/crime case for the offences under the Indian Penal Code and even for the offences under the MMDR Act and the Rules made thereunder, it affects any of the powers of the authorised person to compound the offence.
The appeals filed by the violators/private Appellants are partly allowed, to the extent quashing the proceedings for the offences under the MMDR Act - appeal preferred by the State of Madhya Pradesh stands dismissed.
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