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Showing 441 to 460 of 14509 Records
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2020 (12) TMI 973
Claim of deduction of expenditure u/s 37(1) - Contribution to BATF - contribution made by the assessee to BATF as per the directions of Dy. Commissioner of Bellary District Administration for the purpose of infrastructure development and to maintain cordial relationship with the Government and provide social facilities to the deprived class and which has a nexus with the assessee business - HELD THAT:- We find that the AO has not disputed the genuineness of the expenditure and of the view, that it is not connected to the business and not allowable under Section 37(1) of the Act. We considered the judicial decisions and the provisions of law, are of the opinion that the contribution made by the assessee is wholly and exclusively for the purpose of business and is allowable under Section 37(1) of the Act. Accordingly, we set aside the order of CIT (Appeals) on this disputed issue and direct the Assessing Officer to delete the addition and allow the ground of appeal of the assessee.
Provision for audit fees - AO has disallowed the claim as the assessee has failed to deduct the TDS and applied the provisions of Section 40(a)(ia) - contentions of the Ld. AR that the Audit fee was not credited to the Auditors Account and was lying in the provision for audit fees payable account - alternative contention submitted by the Ld. AR, that the recipient has offered the income for income tax purpose and paid taxes as per the second proviso to Section 40(a)(ia) of the Act, and therefore the payee has discharged his obligation - HELD THAT:- We considering the submissions and the facts, are of the opinion that the matter requires examination and verification of fact that the payee has discharged its obligation to pay the taxes on Audit fees. Hence to meet ends of justice, we provide one more opportunity to the assesses to substantiate the claim before the Assessing Officer with proof of offering of income by the payee for income tax purpose. Accordingly, we set aside the order of the CIT (Appeals) on this disputed issue and restore the entire disputed issue for limited purpose to the file of AO to examine and verify the claim and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the details and allow the ground of appeal of assessee allowed for statistical purposes.
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2020 (12) TMI 972
Disallowance of deduction u/s 80P(2)(d) - interest received on deposit kept with co-operative bank - AO disallowed the claim of deduction by stating that the co-operative bank is different than a co-operative society, as per provisions of section 80P(2) - HELD THAT:- The assessee had made the claim before the authorities below duly supported by several jurisdictional ITAT order in this regard. AO refused to follow the same on the ground that Department has not accepted the same and the same is in appeal before the honourable Bombay High Court. This in our considered opinion is a violation of discipline of judicial hierarchy, as no case is made out that Hon'ble Bombay High Court has reversed any of the decisions. CIT(A) also has refused to follow the discipline of precedence by referring to decision of honourable Karnataka High Court. In this regard as evident from the above said decision of the ITAT [2019 (4) TMI 1933 - ITAT MUMBAI] wherein it has been brought out that there is a decision of honourable Karnataka High Court itself in favour of the assessee and there is another decision of honourable Gujarat High Court in favour of assessee on the same issue. In this view of the matter in our considered opinion learned CIT(A) has also committed violation of the judicial discipline by refusing to follow the precedence cited before him on not very cogent ground.
Be as it may we find that the issue involved is covered in favour of the assessee by several decisions of ITAT Mumbai as above. Moreover it is also supported by the decisions of honourable Karnataka High Court in the case of Totagars Cooperative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT].
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2020 (12) TMI 971
Disallowance of expenditure u/s 14A - suo–motu disallowance made by the assessee - AO mandation of recording reasons - HELD THAT:- AO has recorded his satisfaction why assessee’s claim that no exempt income can be attributed to earning exempt income as well as the suo–motu disallowance is not acceptable. On a perusal of the said reasoning, it is noticed that the AO has not rejected the claim of the assessee merely on the reasoning that the assessee does not maintain its account in a manner from which expenditure attributable to earning exempt income can be easily identified. AO has clearly stated that the time devoted by the investment committee and the employees as well as other overheads certainly involve a cost which is attributable to earning of exempt income. Therefore, it is not a case where the Assessing Officer has failed to record any satisfaction and mechanically proceeded to compute the disallowance under section 14A r/w rule 8D.
Therefore, in our view, the condition of section 14A(2) stands satisfied in the present case.
Reasonableness of disallowance computed under rule 8D(2) - AO treated the suo–motu disallowance of ₹ 6,13,500, as direct expenditure under rule 8D(2)(i) - Commissioner (Appeals) has disapproved the aforesaid decision of the AO and we entirely agree with the reasoning of the first appellate authority.
Disallowance made under rule 8D(2)(iii) - As noticed that the assessee had furnished a computation of such disallowance by applying certain basis. Whereas, the AO without properly examining assessee’s computation has straight away applied the formula prescribed in rule 8D(2)(iii). Of–course, the first appellate authority while deciding the issue has granted partial relief to the assessee by directing the AO to exclude the investments which have not yielded exempt income during the year and which in our opinion is correct. However, as far as the remaining disallowance is concerned, in our view, before applying rule 8D(2)(iii), the Assessing Officer should properly examine assessee’s computation.
It is observed, while deciding similar issue relating to disallowance under section 14A r/w rule 8D(2)(iii) in the assessment year 2009–10, the Tribunal has restored the issue to the Assessing Officer for fresh adjudication. Following the aforesaid decision, the Tribunal has restored identical issue to the Assessing Officer. Appeal of assessee are allowed for statistical purposes.
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2020 (12) TMI 970
Disallowance of deduction u/s 80P(2)(d) - interest received on deposit kept with co-operative bank - AO disallowed the claim of deduction by stating that the co-operative bank is different than a co-operative society, as per provisions of section 80P(2) - HELD THAT:- The Hon'ble Karnataka High court in the case of PCIT vs. Totagars Cooperative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT] has held that for the purpose of section 80P(2)(d) Co-operative Bank should be considered as cooperative society. Similar view has been taken by the Hon'ble Gujarat High court in the case of Surat Vankar Sahakari Sangh Ltd. vs. ACIT [2016 (7) TMI 1217 - GUJARAT HIGH COURT]
On the same issue in the case of PCIT vs. Totagars Co-operative Sale Society [2017 (7) TMI 1049 - KARNATAKA HIGH COURT] has taken a contrary view holding that interest income earned from deposit with the cooperative bank does not qualify for deduction under section 80P(2)(d) of the Act. It would be relevant to mention here that the Hon'ble High Court while rendering the later judgement has not considered the earlier decision rendered in the case of Totagars Co-operative Sale Society (supra).
No judgement from Hon'ble Jurisdictional High court on the issue of eligibility of deduction under section 80P(2)(d) of the Act on interest income derived by a Cooperative Society from a Cooperative Bank has been brought to our notice. The Hon'ble Bombay High Court in the case of K. Subramanian Vs. Siemens India Ltd. [1983 (4) TMI 3 - BOMBAY HIGH COURT] has held that when two conflicting decisions of non-jurisdictional High Courts are available, the view that favours the assessee is to be preferred.
Accordingly, following the decision of Hon'ble Karnataka High Court in the case of Totagars Cooperative Sale Society (supra) and the decision in the case of Hon'ble Gujarat High Court in the case of Vankar Sahakari Sangh (supra) the deduction claimed by the assessee under section 80P(2)(d) of the Act in respect interest derived from investments with the cooperative banks is allowed. I find merit in the grounds of appeal raised by the assessee. The impugned order is set aside and the appeal of assessee is allowed.
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2020 (12) TMI 969
Condonation of delay - delay in filing 738 days before the CIT(A) - sufficient cause of delay - HELD THAT:- The assessee did not file an appeal before the first appellate authority within the time limit prescribed, on the bonafide belief that the demand that has arisen on account of disallowance of claim u/s. 80P would not be enforced and shall be kept in abeyance until the assessment order was rectified by fixing the final liability based on the Hon'ble Supreme Court judgment.
When recovery proceedings were initially initiated on 01.02.2017, the assessee approached the Assessing Officer and orally it was informed to the assessee that the demand would not be enforced and the notice was issued in usual course along with other cases.
As submitted by the assessee, later in December 2018, when there was threat of attachment of bank accounts and direction to pay atleast 20% of the total demand, the assessee was forced to file appeal before the CIT(A) on 30.01.2019. I am of the view that there was bonafide reasons on the part of the assessee for not filing the appeal within the prescribed time limit before the CIT(A). The delay in filing the appeal before the CIT(A) was solely on account of the clear statement by the Assessing Officer that the demand raised in the assessment order would be kept in abeyance till the final decision is taken by the Hon'ble Apex Court. The assessee was under bonafide belief that the A.O. would pass an order u/s. 154 of the I.T. Act confirming the demand citing the Hon'ble Apex Court judgment before starting recovery action. Therefore, there is 'sufficient cause' for filing appeal belatedly before the CIT(A) and the delay cannot be attributed to any latches on the part of the assessee.
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2020 (12) TMI 968
Estimation of income - bogus purchases - CIT-A restricted the disallowance @12.5% - HELD THAT:- CIT(A) considered the factual aspects and dealt on the provisions of the Sales Tax Act and relied on the decision of Hon’ble Tribunal in assessee’s own case and partly allowed the appeal. The Ld. DR could not controvert the findings of the CIT(A) with any cogent material or new information and relied on the order of the Assessing officer. We do not find infirmity in the order of the CIT(A) and upheld the same and dismiss the grounds of appeal of the revenue.
Penalty u/s 271(1)(c) - CIT(A) has estimated the income at 12.5% of the bogus purchases and the addition was accepted by the assessee - HELD THAT:- We are of the opinion that, when the addition is sustained on estimation/ adhoc basis, no penalty u/s 271(1)(c) of the Act can be levied. We find that the LdCIT(A) relied on the Coordinate Bench of Hon’ble tribunal decisions and passed a reasoned order in directing the Assessing Officer to delete the penalty. Accordingly, we are not inclined to interfere with the order of the Ld CIT(A) and upheld the same and dismiss the grounds of appeal of the revenue.
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2020 (12) TMI 967
Disallowance of provision for retention bonus - amount not paid before the due date for filing return of income out of provision - HELD THAT:- A perusal of provision of section 43B of the Act would show that clause (c) relates to the sum referred to in 36(1)(ii) of the Act, which in turn relates to any sum paid to an employee as bonus or commission for services rendered. Admittedly in the instant case, provision for retention bonus is payable to an employee for services rendered by him during the year under consideration. Hence, the retention bonus is allowable as deduction u/s. 36(1)(ii) of the Act only and not u/s. 37(1) as contended by Ld A.R.
Provisions of section 43B of the Act would also apply to the Provision for retention bonus. As per the provisions of section 43B of the Act, the provision for retention bonus is not allowable as deduction. As per the proviso to sec. 43B, the amount paid before the due date for filing return of income out of the provision so created is allowable as deduction. Admittedly, the assessee has paid a sum out of the provision so created, before the due date for filing return of income. Accordingly, we are of the view that the Ld. CIT(A) was justified in directing the A.O. to restrict the disallowance being the amount not paid before the due date for filing return of income out of provision for retention bonus claimed by the assessee. Accordingly, we uphold the order of Ld. CIT(A) on this issue.
Addition of interest income - Addition on the ground that the same is not offered to tax by the assessee, even though it is reflected in form 26 AS and the TDS relating to the same was claimed - HELD THAT:- We notice that the Ld. CIT(A) has not disposed of this ground in his order. Nevertheless the Ld. A.R. submitted that the interest income was received from M/s. Tata Power Company Ltd., which was adjusted against electricity bills raised by the above said company. Since the assessee had accounted for net amount of electricity bills, the interest income was not separately disclosed in the profit & loss account. Accordingly, the Ld. A.R. submitted that the impugned interest income has actually been offered by the assessee by way of reduction in the electricity bill. Since the submissions made by Ld. A.R. require verification of facts, we restore this issue to the file of A.O. for examining it afresh.
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2020 (12) TMI 966
Unconditional release of the detained silk fabric and carpets covered under various shipping bills - export consignments of the petitioners kept on hold - prohibited goods or not - HELD THAT:- Clearance of export goods are dealt with in sections 50 and 51 of the Customs Act, 1962. Once the exportable goods are entered in the customs automated system by generating shipping bill in terms of section 50, the proper officer is required to clear the goods under section 51. As per sub-section (1) of section 51, where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty if any assessed thereon and any charges payable under the Customs Act, 1962, the proper officer may make an order permitting clearance and loading of the goods for exportation - If there is no seizure of the exportable goods of the petitioners, there cannot be any good reason for withholding of the exportable goods, the same admittedly being not prohibited goods.
Stand over to 12.01.2021.
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2020 (12) TMI 965
Principles of Natural Justice - grievance of the petitioner is that though two dates of hearing were granted by the adjudicating authority, no hearing has taken place till date - import of peas - HELD THAT:- Since show-cause notice has been issued under section 124 of the Customs Act, 1962 to which petitioner has submitted reply, we are of the view that it would meet the ends of justice if the adjudicating authority adjudicates the matter in accordance with law and passes the order in original expeditiously.
Let the adjudicating authority pass a speaking order of adjudication after hearing the petitioner and upon independent application of mind considering all aspects - Petition allowed by way of remand.
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2020 (12) TMI 964
Confiscation of goods - imposition of redemption fine and penalty - absence of valid PSI certificate - import of Tin Waste and Scrap (Light Melting Scrap) - misdeclaration of goods - appellant further submits that there was neither any knowledge nor reason to believe on the part of the appellant herein w.r.t. the alleged mis-declaration of the goods so imported - HELD THAT:- It is apparent that the goods declared as Tin Waste and Scrap (Light Melting Scrap) were on verification by the qualified Chartered Engineer certified as Tin Plated Steel Scrap since steel predominates by weight. The appellant had not asked for any re-test or alike at the relevant point of time. On the contrary under letter dated 24.01.2013 (page no. 23 of the appeal memorandum) the appellant/ importer had waived his right of show cause notice and/or hearing at the stage of adjudication and hence, the contention on behalf of the appellant before me that the certificate was issued by the Chartered Engineer on visual examination, cannot come to rescue of the appellant with regard to the proper description of the goods.
It is also not in dispute that for importation of steel scrap, Pre Shipment Inspection Certificate was mandatory in terms of the Foreign Trade Policy, 2009-14. The subsequent communication from the Overseas Supplier together with PSI Certificates cannot come to the aid of the appellant w.r.t. the confiscation of the goods under Section 111(d) of the Customs Act, 1962 since there was restriction under Foreign Trade Policy, 2009-14 in importation of steel scrap. The importation was permitted only against Pre Shipment Inspection Certificates and it is settled position of law that conditions for import, if not fulfilled, the importation is not permitted - In the present case, at the time of importation of the goods, admittedly, Pre Shipment Inspection Certificates were not available and the goods were wrongly described as scrap of tin instead of scrap of steel. The appellant could not even produce such certificates prior to adjudication and as such, the order of confiscation of the imported goods are proper and correct under Section 111(d) of the Customs Act, 1962 and thus upheld.
Imposition of penalty - Section 112 of the Customs Act, 1962 - HELD THAT:- There is nothing on record to suggest any prior knowledge or reason to believe about the confiscable nature of the imported goods under Section 111 of the Customs Act, 1962. Moreover, the goods imported in January, 2013 by the appellant have already lost its market value of ₹ 21,73,643.25(as declared) and the appellant /importer has already suffered substantial loss and injury for no fault on his part. The law requires existence of mens rea and maintenance of balance of convenience prior to imposition of penalty upon any person. In the present case, neither there is any existence of ingredient of section 112 of the Customs Act, 1962 nor any mens rea and hence, the imposition of penalty upon the appellant is bad in law and liable to be quashed.
The order of confiscation of the imported goods under section 111(d) of the Customs Act, 1962 upheld - penalty imposed upon the appellant under Section 112 of the Customs Act, 1962 - appeal allowed in part.
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2020 (12) TMI 963
Permission to re-export confiscated goods - redemption fine and penalty - import of Run Flat Tyres from Dubai, UAE - goods were found to be branded radial car tyres and seized - case of Revenue is that wrongdoing on the part of the foreign exporter cannot be treated as bona fide act on the part of the importer and onus lies upon the importer to prove that it is the bona fide act and no mala fide intention existed - HELD THAT:- The lower authority has concluded that though there was mis-declaration of brand and quality of goods imported, there was nothing on record to show that there was a malafide intention on the part of the importers. In fact, immediately after the fact of mis-declaration came to light, the importer conveyed the same to the foreign supplier who has instantly admitted mistake on their part and they were ready to take back the goods - Under such circumstances, the learned Commissioner (A) has rightly held that there was no malafide intention on the part of the importer and as such, imposition of penalty and redemption fine was not warranted.
Imposing redemption fine and permission to re-export simultaneously - HELD THAT:- Learned Commissioner (A) held that as there was no malafide intention on the part of the importer and re-export being permitted, imposition of redemption fine and penalty was not warranted - it is found that once the goods are allowed to be redeemed on payment of fine in lieu of confiscation, it is not open to the adjudicating authority to impose further conditions on the goods. Putting such a condition, would cause double jeopardy to the appellant. In the fact of absence of malafide intentions being established conclusively, and in the absence of no evidence to the contrary, redemption fine is not imposable on the impugned goods.
Appeal dismissed - decided against Revenue.
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2020 (12) TMI 962
Right of department to file any appeal or cross-objections before the Commissioner (Appeals) - Section 128 of the Customs Act - Deputy Commissioner had sanctioned the refund amount but a direction was given that this amount should be credited to the Consumer Welfare Fund in terms of section 27(2) - HELD THAT:- A perusal of section 128 of the Customs Act shows that any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than a Principal Commissioner or Commissioner may appeal to the Commissioner (Appeals). This section does not provide for filing of cross-objections, unlike sub-section of (4) of section 129A of the Customs Act which, in regard to Appeals to the Appellate Tribunal, provides for filing a memorandum of cross-objections against any part of the order appealed against and also provides that such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified.
Section 128 of the Customs Act dealing with Appeal to Commissioner (Appeals) provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals). The right to file cross-objection is a substantive right conferred by a statue and can be exercised only in accordance with the provisions of the statue. Thus, neither could the Department have filed any appeal against the order of the Deputy Commissioner as it could not have considered itself to be aggrieved by the order since the Deputy Commissioner had not directed for the amount to be paid to Vivo Mobile but had directed to be credited in the Consumer Welfare Fund, nor was it permissible in law for the Department to have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) since cross-objections cannot be filed before the Commissioner (Appeals).
It is, therefore, more than apparent that the Department could neither have filed an appeal before the Commissioner (Appeals) against a part of the order passed by the Deputy Commissioner nor it could have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) against that part of the order sanctioning the refund amount since the right to file cross-objection has not been conferred under section 128 of the Customs Act, which deals with appeal to the Commissioner (Appeals).
The appeals may now be listed for hearing on 06 July, 2020.
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2020 (12) TMI 961
Restoration of name of Excellent Cooling Services Pvt. Ltd. struck off by the Registrar of Companies, Uttar Pradesh - Section 252(3) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.
The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been Struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off’ to 'Active' (for e-filing) etc. - Application allowed.
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2020 (12) TMI 960
Restoration of name of the struck off company in the register of companies, maintained in the office of the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- On perusal of the application, we are satisfied that the company was a going concern and doing business on the date of striking off its name. ROC West Bengal has not objected to this application for restoration of the name of the company. Therefore, this petition deserves sympathetic consideration.
The Registrar of Companies, West Bengal the respondent herein, is directed to restore the original status of the petitioner company as if the name of the Company had not been struck off from the register of Companies with the resultant and consequential actions like changing status of petitioner company from ‘struck off’ to ‘Active’ - Petition allowed.
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2020 (12) TMI 959
Restoration of name of the company in the Register of companies maintained by Registrar of Companies - allegation that Appellant had not filed its Financial Statements and Annual Returns for the Financial Years since 2016-17, 2017-2018 and 2018-19 thereby giving rise to the surmise that the business of the company was not in operation - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act, 2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able to demonstrate that it is just to do so, can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserve to be restored.
The name is restored - application allowed.
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2020 (12) TMI 958
Restoration of the name of the Company to the Register of Companies maintained by the Registrar of Companies - the name of the company was struck off due to failure on the part of the company to file the statutory documents for Financial Year 2014-15 and 2016-17, and also for not carrying on the business - section 252 of the Companies Act, 2013 - HELD THAT:- Upon perusal of the Financial Statements of the Company, it is observed that the Petitioner Company has not generated any revenue for the financial year 2014-15 and 2015-2016. The Petitioner Company has incurred Total Expenses of ₹ 19,788.00 and has Current Assets of ₹ 97,131.00 for F.Y. 2014-15. Further, Petitioner Company has incurred Total Expenses of ₹ 17,950.00 and has Current Assets of ₹ 79,181.00 for F.Y. 2015-16. The Petitioner Company has other current liabilities of ₹ 26,149.00 for F.Y. 2014-15 and 2015-16.
The Bench observes that the Petitioner Company has not generated revenues. However, the Petitioner Company has Current Assets & other current liabilities in its Books of Accounts. Therefore, it would be just, equitable and in the interest of justice to provide an opportunity to the company to rectify its defaults and continue the business.
The Respondent Registrar of Companies, Maharashtra, Mumbai, is directed to restore the name of the Petitioner Company - Application allowed.
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2020 (12) TMI 957
Approval of Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- In his report, the Regional Director, MCA has submitted that the Scheme appears to be fair, reasonable and is not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. Replies have also been furnished in respect of the observations of the Income tax Department and the Competition Commission of India. As per the Petition, the Scheme in question will help in bringing valuable synergies in the operations, in scaling up the business of the undertaking of the Transferor Company resulting in expanding the reach and business base and would enable the Companies concerned to rationalize and streamline their management and finances and will pave better and more productive, economical control and running of the operations, etc.
We are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Boards of both the Transferor and Transferee Companies, is hereby sanctioned, as prayed - Scheme is sanctioned - application allowed.
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2020 (12) TMI 956
Right to apply under section 241 - Seeking for waiver of the applicability of Section 244 of the Companies Act, 2013 - Applicant is even though not a member however is only a Director of the Company - HELD THAT:- It is required to be seen that a bare reading of the above provision including under proviso provided under Section 244 of the Companies Act, 2013 waiver can be granted in relation to an application filed only by a Member and not a Director.
Even though Learned Senior Counsel for the Applicant presses for certain interim directions, we are not inclined to grant the same unless the Waiver Application is disposed of by this Tribunal after giving an opportunity to the respondents. For this purpose, let notice be issued to the Respondents who have been impleaded in the Application through their respective e-mail by Counsel for the Applicant and the Registry will also issue notice to the Respondents - Post this matter on 16.09.2020.
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2020 (12) TMI 955
Removal of Managing Director - Seeking waiver of the requirements for filing the company petition under section 241 read with section 242 of the Companies Act, 2013 - section 244 of the Companies Act, 2013 - HELD THAT:- The applicant/the petitioner has made out a prima facie case by establishing that he has been holding the position of the managing director of the company and was authorized signatory before his removal by the respondents on May 14, 2019. Admittedly the applicant/ petitioner was removed by the respondents without following the due process of law, as he was not afforded an opportunity of being heard. Thus, it is a fit case for inference by this Tribunal, as the matter complained is more than a directorial complaint. Therefore, there requires an enquiry to be conducted into the acts of oppression and mismanagement alleged to have been committed by the respondents. The applicant/petitioner is holding 5,000 shares, i. e., 0.04 per cent. of the total issued share capital of the first respondent-company and not fulfilling the requirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013. Therefore, it is prayed by the applicant/petitioner to grant waiver of the requirements of section 244(1) for filing the petition under section 241 read with section 242 of the Companies Act, 2013 against the respondents.
The proviso to sub-section (1) of section 244 provides that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241 (emphasis supplied). In the present case, the requirements of sub-clause (a) of sub-section (1) of section 244 were to be fulfilled (as the company is having a share capital), which the applicant/ petitioner is falling short of. However, the applicant being member of the first respondent-company is holding 5,000 shares, i. e., 0.04 per cent. of the total issued share capital and is eligible to seek waiver as prayed for.
Thus, it is a fit case where the requirements laid down under section 244(1)(a) of the Act, 2013 need to be waived and allow the applicant/petitioner to file company petition under section 241 read with section 242 of the Act, 2013, as the company petition cannot be dismissed at the threshold because it requires a detailed enquiry into the matter complained of. Thus, the issue framed stands decided in favour of the applicant and against the respondents - in exercise of the powers conferred under proviso to section 244(1) of the Act, 2013, we waive all the requirements of section 244(1)(a) of the Act, 2013 and treat the company petition under Order 1, rule 8 of the Code of Civil Procedure, 1908 as a representative petition read with sections 241 and 242 of the Act, 2013.
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2020 (12) TMI 954
Approval of revised Resolution Plan - Respondent submits that if this Hon’ble Tribunal directs the Respondent No. 2 is ready to consider the revised Resolution Plan, an effort may be made if ‘Committee of Creditors’ accepts the revised Resolution Plan - HELD THAT:- The revised Resolution Plan – Annexure P/6 may be processed by the Resolution Professional as required by the provisions of IBC and if in order Resolution Professional will take steps to place the same, before ‘Committee of Creditors’. The ‘Committee of Creditors’ may consider the revised Resolution Plan and it will be for the ‘Committee of Creditors’ whether or not to accept the Resolution Plan, and if rejected may take further suitable decision regarding liquidation.
Appeal disposed off.
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9911796707
