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Showing 141 to 160 of 16576 Records
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2021 (12) TMI 1389
Classifications of a group of products - measuring devices - flowmeters and level measurement instruments - Section 28-I(2) of the Customs Act, 1962 - HELD THAT:- According to Section 28-I(2) of the Customs Act, 1962, the authority shall not allow the application where the question raised in the application is either already pending in the applicant’s case before any officer of customs, the Appellate Tribunal or any Court; or has already been decided by the Appellate Tribunal or any Court. It is true that there is an appeal of the applicant pending before the CESTAT. The pending appeal is in respect of products that are not involved in any of the 21 applications involved in the present proceedings. The term “advance ruling” is defined in the Act as a written decision on any of the questions referred to in Section 28H raised by the applicant in his application in respect of any goods before their importation or exportation - It has to be kept in mind that the process of advance rulings is not a dispute settlement mechanism, but is purely a facilitative nature and seek to enhance ease of cross border trade by indicating entry tax liabilities before import or export. In such circumstances, if the present applications are rejected only because an appeal is pending in respect of similar products, that would be a travesty.
The items under consideration are stated to be measuring instruments consisting of 20 applications of flowmeters and one application of a level measuring device. Flowmeters are devices that measure/check the mass flow of liquids and gases, along with other parameters such as temperature, specific gravity etc. The level measuring instrument is used for point level/interface detection of different liquids. The product catalogues submitted with these applications are also in agreement with the averments of the applicant. The applicant has explained the basis of groupings of the instruments/devices as common sensor and each group of products are intended for different applications/industries - Measuring or checking instruments or apparatus of this heading combined with taps, valves, etc., are to be classified as indicated in the Explanatory Note to Heading 84.81. “APPARATUS FOR MEASURING OR CHECKING THE FLOW OR RATE OF FLOW OF LIQUIDS OR GASES”.
Apparatus for measuring or checking the flow or rate of flow of liquids or gases - HELD THAT:- The HSN Explanatory Notes to Heading 90.26 states that apart from specific exclusions as mentioned, Heading 90.26 covers instruments and apparatus for measuring the flow, level, pressure, kinetic energy or other process variables of liquids or gases. From the product description, it is evident that the flowmeters under consideration indicate the rate of flow. They are fitted with a sensor that is sensitive to the variations in the quantity to be measured. These variations are converted into electrical signals - The HSN explanatory notes specifically include flowmeters working on the principles of magnetic field (applications at Sr. Nos. 1-7), ultrasound (applications at Sr. Nos. 13-16), heat (applications at Sr. Nos. 8-12) and differential pressure (applications at Sr. Nos. 17-20). These flowmeters do not fall under the exclusion criteria specified in explanatory notes.
Instruments for measuring or checking the level of liquid or gases - HELD THAT:- The HSN explanatory states that level indicator includes inter alia, electrical type based, for example, on the variations of resistance, capacitance, ultrasound, etc. This heading covers not only level indicators for closed reservoirs or tanks, but also those for open basins and canals (hydroelectric works, irrigation systems, etc.). Instruments for measuring or checking the level of solid materials are excluded (Heading 90.22 or 90.31, as the case may be). From the product description, it is evident that the liquicap (application at Sr. No. 21) is used to measure the level of liquid using variations of capacitance. A transmitter is also fitted for communication purposes. Further, this level instrument does not fall under the exclusion criteria specified in explanatory notes - Thus, the impugned goods are classifiable under Heading 90.26 of the Customs Tariff Act, 1975, the flowmeters are classifiable under sub-heading 9026 10 10 and the level measuring instrument is classifiable under sub-heading 9026 10 20.
The flowmeters under consideration appear to only measure the flow rate and make available the measured value in the required signal format for further processing/information, based on the requirement of the end customer. There is nothing on record, or available in the product catalogues to indicate that these devices/instruments have the capacity to perform additional functions of automatically controlling or regulating the flow of liquids. In the context of explanatory notes, these devices lack 2 essential components, viz, a control device and a stating/stopping/operating device. Therefore, it appears that the goods under consideration do not fulfil the criteria laid down in explanatory notes and are consequently not classifiable under Heading 9032.
The instruments/devices under consideration merit classification under Heading 90.26 and more specifically, devices listed at Sr. Nos. 1 to 20 of Table 1 under sub-heading 9026 10 10 of the First Schedule to the Customs Tariff Act, 1975 and devices at Sr. No. 21 of the said table under sub-heading 9026 10 20 of the first schedule to the said act - Application disposed off.
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2021 (12) TMI 1388
Validity of Lookout Circular (LoC) dated February 29, 2020 - applicability of Circulars dated March 16, 2019 issued by the Indian Banks' Association (IBA) - allegation against appellant is that the departure of the petitioner would be detrimental to the economic interest of India and larger public interest - case of petitioner is that the petitioner is neither a borrower nor a guarantor - HELD THAT:- In the present case, the respondent-authorities have failed to justify rationally as to why the departure of the petitioners from India would, in any manner, be detrimental to the sovereignty or security or integrity of India or to the bilateral relations with any country or to the strategic and/or economic interests of India as a whole. The mere subsistence of an allegation of default could not trigger the issuance of the LoC at the drop of a hat. As such, the expression "detrimental to the economic interests" of India ought not to be an excuse to restrain citizens of India from leaving the country without any convincing ground being disclosed for such restraint - In the present case, there is no allegation that the CBI has an arrest-warrant against the petitioners and/or the petitioners' personal participation in the CBI enquiry is of utmost necessity at the present juncture.
In the present case, the respondent no. 2-bank has brought in unwarranted and unsupported comparison of the petitioners to other cases of infamous fraudsters, without there being any semblance between the attending circumstances of the present case with the cases of the said persons.
As revealed by the LoC and even the affidavits-in-opposition of the respondent no. 2, no cogent reason has been shown for the request of the LoC. Even the respondent-authorities acted in an unlawful manner in blindly issuing the LoC without even ascertaining whether the request by the respondent no. 2 revealed any exceptional case as envisaged in the amended Office Memorandum No. 25016/31/2010-Imm dated October 27, 2010. It is incumbent upon the issuing authority of the LoC to ascertain at least whether the grounds disclosed in the LoC and/or the request for LoC fall within the four corners of the exceptional cases as defined in the Office Memorandum - the LoC dated February 29, 2020 issued against the petitioner was unlawful and de hors the relevant provisions and the Office Memorandum dated October 27, 2010 (as amended). Thus, the LoC cannot stand judicial scrutiny under Article 226 of the Constitution of India.
Application allowed.
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2021 (12) TMI 1387
Appointment of an Arbitrator under the provisions of Sections 11(5) and (6) of the Arbitration and Conciliation Act, 1996 - time limitation - HELD THAT:- The two Judge Bench of the Hon’ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited and Another [2021 (9) TMI 1053 - SUPREME COURT] has observed that the jurisdiction of this Court under Section 11 is primarily to find out whether there exists a written agreement between the parties for resolution of disputes through arbitration and whether the aggrieved party has made out a prima facie arbitrable case.
Whether the claims raised by the petitioner are time barred or not? - HELD THAT:- The conjoint reading of Clauses-36 & 37 makes it clear that a party does have a right to seek enforcement of agreement before the Court of law but it does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. Moreover, Clause-37 also suggests how arbitration proceedings shall be conducted and in the light thereof. Petitioners have already proposed name of Mr.Justice (Retd.) Kailash Gambhir and respondent in its reply has proposed name of Mr. Justice (Retd.) Manmohan Singh as the second Arbitrator. Even otherwise, once respondent has proposed the name of second Arbitrator, it cannot be permitted to take objection of delay and latches as well as application of Clause-36 to the Addendum Agreement dated 19.04.2011 to the present case.
This Court finds that the disputes inter se parties are arbitrable and can be adjudicated by the arbitral tribunal.
A part of petitioner’s land has been transferred by the respondent to a third party i.e. M/s MGF Developments Ltd. - petition disposed off.
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2021 (12) TMI 1386
Assessment u/s 153A - Addition u/s 68 - HELD THAT:- On perusal of the seized material, it is seen that the material referred to in the Satisfaction note does not pertains to AY 2003-04 in most cases. It is further seen from the records that no seized material or statement has been relied upon by the AO while making the addition and that the addition was made when conditions of section 68 of the Act were not fulfilled during the post search proceedings and during the proceedings before the AO. Appeal is squarely covered by the judgment of this Court in Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT]
Accordingly, we find no merit in the present appeal. The same is dismissed.
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2021 (12) TMI 1385
Condonation of delay - delay of 331 days in filing the appeal - HELD THAT:- As in the case on hand, we are compelled to take a different view on account of prejudice which has been caused to the assessee due to this belated filing of appeal by the revenue. The period of limitation for filing the appeal lapsed on 21st January, 2020. Had the appeal been preferred by the department within the said time, the assessee had an option to go under the Director Tax Vivad-se-Biswas Act, 2020 and file an application before the concerned authority.
On account of the delay in filing the appeal, the assessee was not in a position to exercise such an option. That apart, we have perused the affidavit filed in support of the application for condonation of delay and we find that there is absolutely no reason assigned by the revenue to condone the inordinate delay of 331 days in filing the appeal.
Thus, both on the ground that no sufficient cause has been shown by the appellant/department and also on the ground that the assessee has been put to prejudice which cannot be remedied, we are not inclined to condone the inordinate delay in filing the appeal. Petition for condonation of delay dismissed.
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2021 (12) TMI 1384
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is an admitted fact that Rs. 32,43,000/- was paid as an advance to the Corporate Debtor by the Operational Creditor. This deposit is towards the advance licence fee, It is also an admitted fact that by filing this application, the Petitioner has claimed that since the amount was not refunded, therefore, there is @ default in payment of the amount, which comes under the definition of the Operational Debt.
Pre-existing dispute or not - contention of the Respondent is that there is pre-existing dispute which the respondent has raised by issuance of the legal notice under Section 138 NI Act - HELD THAT:- The issuance of the N.LA legal notice under NI, Act, cannot be treated as dispute. Therefore, there are no force in the contention raised on behalf of the Respondent that there is a preexisting dispute. It is further noticed that the application filed by the applicant under Section 9 is complete, demand notice was duly delivered and the amount claimed in Part-IV has not been paid as yet.
There is no payment of unpaid operational debt or the invoices, notice for payment to the Corporate Debtor has been duly delivered by the Operational Creditor and no notice of dispute has been received by the Operational Creditor or there is no record of dispute - the applicant has fulfilled all the criteria as required under Section 9 (5) (i) of the IBC.
Petition admitted - moratorium declared.
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2021 (12) TMI 1383
Refund of payments made as draw charges by the petitioner - Rule 3(11) of the Lotteries (Regulation) Rules, 2010 (2010 Rules) - HELD THAT:- In the present writ petition, neither the Organising States nor the distributor/selling agents have been made parties. The claim for refund is being made by the sole stockist of the distributor/selling agent. The sole stockist of the distributor/selling agent would have, under the scheme of the Act and the Rules, no hand in the pricing structure of the cost of the lottery tickets. It is settled that refund of this nature cannot be granted if the burden of the draw charges had been passed on to a third party or the ultimate consumer. Although the petitioners have filed affidavits stating that they had not passed on the burden, when it is for the Organising State to structure the pricing of the lottery tickets, it may not be possible to determine this lis without the Organising States and the distributor/selling agent. Further, the petitioner has sought to rely upon the agreements entered between the Organising States and the distributor/selling agent on the one hand and the agreement between the distributor/selling agent and the petitioner on the other without the parties to the agreement being brought before the Court.
The agreements relied upon by the petitioner has been perused for a prima facie view only. It appears that to determine whether or not the burden of draw charges paid by the petitioner on behalf of the Organising States had been passed on to the ultimate consumer it is necessary to examine the complex issue of pricing of the lottery tickets which may not be possible in a writ jurisdiction. Furthermore, the issue involved here also requires an interpretation of these agreements between parties not before this Court. The only thing certain is that the petitioner had paid the draw charges. The State respondents have also raised the issue of limitation and seriously contested it.
This Court is of the view that it would not be correct to decide the issues raised in writ jurisdiction. The writ petition, is therefore, dismissed.
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2021 (12) TMI 1382
Seeking grant of Regular Bail - siphoning of funds - benami properties - purchase of land in the name of their employees and agents, who are not actual beneficiaries - HELD THAT:- It is an admitted fact that none of the petitioners herein have been nominated as an accused either by CBI or ED, which agencies are also looking into the scam that has taken place at the behest of Chairman/Directors of the Company - It is also admitted fact that as on date, petitioners are in custody and the matter has already been investigated and the challan stands presented in a magisterial trial and therefore, question of interfering in the investigation by the petitioners would not arise. As far as the question of influencing the witnesses is concerned, it would be worthwhile to note that they would be official witnesses, who would be giving their testimony on the basis of documents already in their possession and therefore, possibility of influencing them is far off.
The apprehension raised by counsel appearing for the complainant that the land standing in the name of various persons (benami holders) is being sold, would be protected by the order passed by the Hon’ble Supreme Court on 25.07.2016 wherein there is a restraint order of any sale, transfer, alienation or even creation of third party interest on the land in any manner whatsoever and therefore, it would be open to the complainant to point out any such sale, transfer or alienation taking place to the investigating officer of current FIR.
The petitioners are directed to be released on regular bail on execution of personal bonds of ₹ 50,000/- and a surety of like amount in each case by each petitioner to the satisfaction of concerned trial Court/Duty Magistrate - Petition allowed.
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2021 (12) TMI 1381
Seeking participation in e-auction - Section 60(5) of the IBC, read with Rule 11 of the IBC - HELD THAT:- The tender document clearly specified the eligibility criteria at Clause 1.15, stating that the Individual/Partnership firm, HUF, LLP or any company, which is three years old with Turnover of Rs. 20.00 Cr. and Net Worth of Rs. 03.00 Cr. for each set of Land & Building. It clearly states that no such condition will apply to plant and machinery and other moveable assets. This eligibility criteria according to the Liquidator has been fixed on the basis of the minutes of the meeting held by the Stakeholders Consultation Committee (SCC), which is also based on in the documents relied by the applicant namely Discussion Paper.
Hon'ble Appellate Tribunal and higher forums have been repeatedly requesting this Tribunal to take up cases on priority basis, where several home buyers, individual companies and IBC proceedings require time of the Tribunal but this applicant chooses to file an application of this nature, knowing the consequences and wants the luxury of being heard by this Tribunal at length. The application therefore requires to be rejected with proportionate cost for pursuing such a claim and making such untenable plea before this Tribunal which is likely to stall the auction proceedings to be held at 03:00 P.M. today.
Application dismissed.
The pre-bid qualification is the eligibility criteria of the bidders, as specified by the Stakeholders Consultation Committee, which is binding on the Liquidator. The faint argument of Mr. Rakesh Kumar, Ld. Counsel for the applicant, that pre-bid qualification will not bind the bidders, is totally misconceived because in all these cases the eligibility criteria of bidders is an essential component for bidding process, otherwise, it will lead to all and sundry participating in the bid process, which will only jeopardise the Liquidator's endeavour to maximise the value of the asset of the corporate debtor in liquidation -
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2021 (12) TMI 1380
Service of notice - HELD THAT:- Issue notice to the Respondent/Corporate Debtor. Ld. Counsel for the petitioner/Financial Creditor shall collect the notice from the Registry and send the same together with complete paper book and copy of this order immediately to the Respondent/Corporate Debtor at its address by speed post and file affidavit of service along with copy of postal receipt and tracking report within two weeks.
List the matter on 17.02.2022.
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2021 (12) TMI 1379
Maintainability of petition - irreparable loss - balance of convenience - Constitutional validity of Section 217(5) of the Companies Act - HELD THAT:- The Petitioners have made out a prima facie case for grant of interim relief. Balance of convenience is also in favour of the Petitioners and if the interim relief, as prayed for, is not granted, irreparable loss shall be caused to the Petitioners.
There was thus a clear mandate by the Central Government to complete the investigation within three months from the date of the issue of the order i.e. 31.10.2018. However, the investigation was not completed within the stipulated time and as asserted by the Petitioners, the same is still ongoing. Prima facie, there is violation of Section 212(3) and the direction of the Central Government.
So far as investigation into the affairs of the six Companies by virtue of impugned order dated 27.10.2020 (Annexure P-2 to the memo of this writ petition) is concerned, which includes Petitioners No.2 and 3 herein, there is violation of provisions of Section 219 of the Companies Act, 2013. There seems to be prima facie merit in the contention of the Petitioners that the Companies sought to be investigated under Section 219 ought to have an affiliation with the Company(s) under investigation, as provided for in the Statute.
There is also prima facie merit in the contention of the Petitioners that the impugned orders dated 31.10.2018 and 27.10.2020 do not indicate the reasons or circumstances that compelled the Central Government to form an opinion to order investigation by the SFIO into the affairs of the Petitioners. All that the orders reveal is that the Central Government has the power under Section 212 of the Companies Act to direct investigation into the affairs of a Company and that it has formed an opinion to do so - nothing is discernible from the impugned orders as to what cogent material led to the formation of opinion by the Central Government that the affairs of the Petitioners were required to be investigated.
The operation, implementation and execution of the orders dated 31.10.2018 and 27.10.2020 (Annexures P-1 and P-2 to the memo of this writ petition), passed by the Respondents as well as subsequent actions and proceedings initiated pursuant thereto, including coercive proceedings and look-out notices, are stayed, till the next date of hearing.
List on 18.01.2022.
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2021 (12) TMI 1378
Disallowance u/s 14A r.w.r 8D - CIT-A restricted disallowing to exempt income earned by the assessee - HELD THAT:- We find that the total exempt income earned by the assessee during the year was Rs.382/-. Ld. AO noted that assessee has huge investments mainly on unquoted strategic investments in subsidiary companies and proceeded to make a disallowance u/s 14A at Rs.21,15,14,527/- u/s 14A of the Act read with Rule 8D(2) of the Income-tax Rules, 1962.
CIT (A) referring to the judgments of Hon’ble Delhi High Court in case of Cheminvest Limited [2015 (9) TMI 238 - DELHI HIGH COURT] and CIT vs. Holcim India Pvt. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] held that disallowance u/s 14A cannot exceed the exempt income. The aforesaid finding of the ld. CIT (A) is in accordance with law as propounded by the Hon’ble Delhi High Court. So, we do not find any infirmity in the findings returned by the ld. CIT (A) and the same is accordingly upheld. Consequently, the appeal filed by the Revenue is hereby dismissed.
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2021 (12) TMI 1377
Levy of interest - HELD THAT:- It is not in dispute that by virtue of amendment to the Central Goods and Services Tax Act, 2017 by the Finance Act, 2021, the levy of interest in terms of the impugned order dated 24th February, 2020 (Annexure-2) has been rendered unsustainable in law.
In that view of the matter, the impugned notice on demand and recovery dated 24th February, 2020 (Annexure-2) is hereby set aside and the matter is remanded to the Superintendent, GST & Central Excise, Cuttack VI Range, CDA (Opposite Party No.4) for a fresh order in the light of the said amendment.
The writ petition is disposed off.
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2021 (12) TMI 1376
Time Limitation for re-opening of the assessment - rejection on the ground that the amendment of Section 27(1) of the Act was made in the year 2012 vide G.O.Ms.No.82, Commercial Taxes and Registration (B1) Department, 18.06.2012 - Section 27 of the TNVAT Act, 2006 - HELD THAT:- As far as the merits of the case for the Assessment Year 2011-2012 is concerned, this Court is not inclined to entertain the plea, particularly in the light of the fact that the petitioner has been negligent in not filing reply to the notices dated 22.06.2018 either within the time stipulated in the notices dated 22.06.2018 or after the expiry of time sought for by the petitioner by letter dated 19.07.2018 was granted - The only fault lies in the entire proceedings is that the respondent has not called the petitioner for a personal hearing before passing impugned Assessment Orders. However, the fact remains that the petitioner was also.
This Court is incapable of deciding the case on merits merely based on the affidavit of the petitioner without any other documents. It is not possible for the Court to get into the disputed questions of fact - considering the fact that the petitioner is facing huge demand of tax and penalty, this case is remitted back to the respondent to reconsider the issue subject to the petitioner depositing a 25% of the demand in the respective impugned Assessment Orders as a condition for the case to be heard. The amount shall be deposited by the petitioner within a period of three months from the date of receipt of a copy of this order.
Writ petition disposed off.
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2021 (12) TMI 1375
Preferential Transactions - Undervalued Transactions - Fraudulent Trading - Loan repaid to the director during the FY 2017-18, is in preference to trade payables statutory dues and salary to staff, during that year - amount paid to Mrs. Revathi Radhakrishnan, wife of suspended managing director, on 01st July 2018 as loan to be repaid to the Corporate Debtor with interest and cost thereof - settlement of interest and cost of the balance outstanding with respect to the SMS Server Maintenance charges of Rs. 90,00,000/-, which is still pending to be received from this subsidiary company, subject to the Application filed with NCLT, Kochi Bench regarding the recoverability of Outstanding Debtors of the Corporate Debtor - restoration of position as it existed before such transaction as if the transaction had not been entered into and protecting the interests of persons who are victims of such transactions.
HELD THAT:- The transactions in question were preferential, undervalued and fraudulent within the meaning of Sections 43, 45 and 66 of the Code as suspicious and vulnerable, firstly, Rs. 42,50,397 repaid to the director during the F.Y. 2017-18, is in preference to trade payables. Secondly, Rs. 6,28,000 paid to Mrs. Revathy Radhakrishnan Director of the Corporate Debtor. Thirdly, an amount of Rs. 90,00,000 is receivable from Sabkaa Payments Limited.
Looking at the broad features of Section 43 of the Code, it is noticed that as per Sub-Section (1) thereof, when the liquidator or the resolution professional, as the case may be, is of the opinion that the Corporate Debtor has, at a relevant time, given a preference in such transactions and in such manner as specified in Sub-Section (2), to any person/persons as referred to in sub-Section (4), he is required to apply to the adjudicating authority for avoidance of preferential transactions and for one or more of the orders referred to in Section 44. If twin conditions specified in Section 43(2) are satisfied, the transaction would be deemed to be of preference - The relevant time is reckoned, as per Section 43(4) of the Code. in two ways: (a) if the preferences given to a related party (other than an employee), the relevant time is a period of two years preceding the insolvency commencement date; and (b) if the preference is given to a person other than a related party, the relevant time is a period of one year preceding such commencement date. In other words, for a transaction to fall within the mischief sought to be remedied by Sections 43 and 44 of the Code, it ought to be a preferential one answering to the requirements of Section 43(2)(d) and the preference ought to have been given at a relevant time, as specified in Section 43(4).
It appears from the records that on account of complexity in the transaction of the Corporate Debtor, Liquidator has appointed Mr. Vibin Vincent, Chartered Accountant in accordance with Regulation 7 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations 2016 to conduct Transaction and Forensic Audit to identify the preferential, undervalued, fraudulent and extortionate transactions - This Tribunal is of the opinion that the concept of avoidance is essentially premised on fairness and equity, when a company is on the brink of insolvency, paying off one creditor may be detrimental to the interests of the other creditors as it would result in a diminution of total assets available for distribution to other creditors.
After conducting a Transaction Audit and Forensic Audit by Mr. Vibin Vincent, Chartered Accountant, he has reported that based on his analysis of Audited Financial Statements, various bank statements, and other explanations he has found preferential transaction of an amount of Rs. 1,38,78,397/- during the relevant period - this amount should be returned to the Liquidator for distributing among the stakeholders. We direct Mr. Reji Sivankutty and Mrs. Revathy Radhakrishnan to return this amount to the Liquidator within two weeks from the date of receipt of this order. With regard to the payment made by the Sabkaa Payments Limited (subsidiary Company), since they have not been made party to the proceedings, this Tribunal cannot direct them to return the money.
Since, the Liquidator has already filed a dissolution application, he shall take immediate steps to recover the amount from the suspended Managing Director/Director and a report submitted before this Tribunal as to how he has distributed the amount to the stakeholders, immediately after two weeks.
Application disposed off.
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2021 (12) TMI 1374
Sham and fraudulent transactions, therefore null and void - Contribution to the assets of the Corporate Debtor in terms of Section 66 of the Code by reimbursing/refunding the amount with an interest @ 12% - direction to erstwhile/suspended board of Directors i.e. Non-Applicants/Respondent Nos. 15 to 20, to provide the details and addresses of the independent parties - Section 68, 69, 70 of IBC - HELD THAT:- After the initiation of CIRP in terms of Section 14(1), all proceedings, the institution of suit or continuation of pending suits against the corporate debtor shall remain stay during the Moratorium. Similarly in terms of Section 33(5) when a liquidation order is passed no suit or other legal proceeding shall be instituted by or against the Corporate Debtor. Of course, it is subject to the provision contained in Section 52 of the IBC - A bare perusal of the provision shows that the exception referred to in Section 32A is not applicable in case of a promoter or in the management or control of the corporate debtor or a related party of such a person.
Though the proceeding under Section 66 shall not be continued against the respondent No. 1, as the respondent No. 1 is under liquidation but the promoters, the persons in the management/control of the Corporate Debtor or a related party of such person are still liable under Section 66 of the IBC.
There is no material produced on behalf of the respondents on the record, which controvert the pleadings of the applicant We further notice that the prayer of the applicant is based upon the Transaction Audit conducted by the Chartered Accountant for the period from 01.03.2013 (date of Incorporation of the Corporate Debtor) to 21.10.2019 (date of order of Initiation of CIRP against the Corporate Debtor).
It is observed that so far the preferential transactions under section 43, avoidance of undervalued transaction under section 45 and section 50 are concerned, in the absence of the relevant documents and information, the Auditor has shown their inability to comment on these transactions - A perusal of the provision shows that if during the corporate insolvency resolution process or liquidation process, it is found that any business of the corporate debtor has been carried out on with intent to defraud creditors of the corporate debtor or for any fraudulent purpose the Adjudicating Authority may on the application of the resolution professional or liquidator as the case may be pass an order.
The respondents No. 2 to 21, the suspended board of directors of the corporate debtor and other related persons were carrying on business with intent to defraud the creditors of the corporate debtor or with fraudulent purpose and accordingly, they misappropriated Rs. 2687.27 Lakhs and diverted to their own use with intent to defraud the creditors. Therefore, they are liable to make such contribution to the assets of the corporate debtor - the Respondents number 2 to 21 are directed to make contribution of Rs. 2687.27 Lakhs jointly or severely to the assets of the corporate debtor within a period of maximum 02 months from the date of this order. And if they fail to pay the aforesaid amount within the prescribed period, then same shall be realised from their property/properties.
The present application is hereby allowed.
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2021 (12) TMI 1373
Territorial Jurisdiction - impugned order is passed by the Additional Director General, (Adjudication), DRI, Mumbai - order appealable before this bench or not, since it was passed by the ADG, DRI, Mumbai the correct jurisdiction is CESTAT Mumbai - HELD THAT:- The impugned order was passed by the ADG (Adjudication), DRI, Mumbai. Accordingly, the appeal lies in the Mumbai bench and this Ahmedabad bench has no jurisdiction to entertain this appeal.
Accordingly, the appeal is dismissed as non maintainable.
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2021 (12) TMI 1372
Seeking direction to Resolution Professional to make provision in the information memorandum and corresponding resolution plan - HELD THAT:- The EPFO Department has not followed the due process as prescribed under the IBC, 2016. The Supreme Court in the matter of PK. RAMACHANDRAN VERSUS STATE OF KERALA & ANR. [1997 (9) TMI 598 - SUPREME COURT] has held that an essential pre requisite of exercising discretion to condone the delay is that the Court must record its satisfaction that the explanation of delay was either reasonable or satisfactory. Further, in the present case the Applicant is not even aware whether the Company is under Liquidation or under the CIRP. In any case, the insurmountable delay of nearly 936 days cannot be condoned at this belated stage.
Application dismissed.
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2021 (12) TMI 1371
Renewal of an existing insurance policy - duties of an insurer - HELD THAT:- The law in India is that unless the unilateral mistake about the terms of a contract is so serious as to adversely undermine the entire bargain, it does not result in automatic avoidance of a contract. Applied to the facts of this case, it is evident that the appellants could insist on the old insurance policy, on the premise that it renewed the pre-existing policy. The other conclusion would be cold comfort to the party seeking insurance cover, as the choice would be to avoid it altogether- too drastic as to constitute a choice - issue decided in favour of the appellants.
What are the duties of an insurer, when a policy holder seeks renewal of an existing policy? - HELD THAT:- In view of the state of law, which is, that the insurer was under a duty to disclose any alteration in the terms of the contract of insurance, at the formation stage (or as in this case, at the stage of renewal), the respondent cannot be heard to now say that the insured were under an obligation to satisfy themselves, if a new term had been introduced. If one considers the facts of this case, it is evident that the insurer had caused a renewal reminder, which was acted upon and the renewal cheque, issued by the appellant - The courts’ remedial power, to refuse enforcement of such contracts, or contractual terms, finds support in a few decisions of this Court.
There is no doubt that insurance business is run through brokers and agents. The role of an agent in this regard is to be examined. This Court has spelt out, in the context of insurance business the role of insurance agents and the liability or responsibility of insurance companies in the event of failure to discharge the duties cast upon agents, and the likely vicarious responsibility or liability of the insurer.
This Court is of the opinion that the findings of the State Commission and the NCDRC cannot be sustained. The insurer was clearly under a duty to inform the appellant policy holders about the limitations which it was imposing in the policy renewed for 2008-2009. Its failure to inform the policy holders resulted in deficiency of service. The impugned order of the NCDRC as well as the order of the State Commission are hereby set aside. The order of the District Forum is accordingly restored. Consequently, the appeal is allowed; in the circumstances of this case, the respondent shall bear additional costs, quantified at Rs.50,000/-.
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2021 (12) TMI 1370
Dismissal of application seeking permission to lead additional evidence at appellate stage - allegations against the petitioner in the complaint are that the sample of milk manufactured by his business concern, upon analysis of the sample take of his product, was found to be sub-standard, unsafe and misbranded by the Referral Food Laboratory, Kolkata - HELD THAT:- It ultimately is the discretion of the Appellate Court as to whether additional evidence can be permitted to be adduced at the appellate stage but such discretion has to be exercised on recognized principles evolved over a period of time by the case law on the subject. The only consideration which has to be kept in mind by the Appellate Court is to secure the ends of justice. However, the additional evidence cannot and ought not to be received in such a manner as to cause prejudice to any of the parties. It cannot be a re-trial and it is only the concept of justice which much prevail. The Appellate Court cannot allow additional evidence to be led just to fill up the lacuna at the appellate stage. The Court has also to see as to whether the evidence proposed to be led is relevant. The test to be applied is as to whether evidence sought to be advanced is essential for just decision of the case.
Adverting to the facts of the instant case, as already noted, petitioner proposes to examine witness, namely, Murtaza Ali, who is stated to have deposed about the procedure adopted during the course of sampling and sealing. The said statement has been made by the aforesaid witness in the departmental enquiry that was conducted pursuant to the orders of the trial court in the judgment which is subject matter of appeal before the Appellate Court. The question arises as to whether petitioner can be allowed to do so at the appellate stage.
So far as the opinion of the experts is concerned, the same is a relevant fact in terms of Section 45 of the Evidence Act. What the petitioner seeks to produce on record is opinion of an expert who has published a research paper on effects of Formalin on the test results of samples of milk. An expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court with scientific test criteria to test accuracy of conclusions. Based on such expert opinion and upon appreciation of the facts of a case, the court has to give its independent judgment. The court has not to subjugate its own judgment to that of expert. Nonetheless, opinion of an expert is a relevant fact.
Thus, it is concluded that the petitioner is seeking permission to produce evidence which is relevant to the issue pending before the Appellate Court and there was no occasion for the petitioner to produce this evidence during trial of the case as the same has come to his notice only after conclusion of the trial. The evidence sought to be introduced by the petitioner is not only necessary for the just decision of the appeal but shutting out the same would result in failure of justice. It is not a case where petitioner is trying to fill up the lacunae left during the trial of the case but it is a case where petitioner is trying to place on record the evidence which has come to his notice after the conclusion of trial and which has a definite bearing upon decision of the case.
Petition allowed.
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9911796707
