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Showing 101 to 120 of 834 Records
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2020 (6) TMI 735 - CESTAT AHMEDABAD
Valuation of imported goods - Aluminium Scrap - rejection of declared value - appeals rejected on the ground that the appellant have given a consent letter accepting the enhanced value of the Assessing Authority, therefore, the appellant is not a aggrieved party - HELD THAT:- The Assessing Authority reassessed the Bill of Entries by enhancing the value not on the basis of any material evidence which show that the appellant have misdeclared the value even no Contemporaneous Import Data was relied upon. The sole reason for enhancement of the value is on the basis of DGOV Guideline vide letter dated 15.11.2018. Therefore, the Adjudicating Authority has not followed the principle laid down under the Custom Valuation Rules and without application of mind straightway enhanced the value only on the basis of DGOV guildeline.
In the present case, no such exercise was carried out, Obviously for the reason that the enhancement of value on the basis of the DGOV guideline. In Absolutely identical case of the appellant themselves this tribunal has allowed the appeal in - M/S SUNLAND METAL RECYCLING INDUSTRIES AND OTHERS VERSUS C.C. -KANDLA [2019 (10) TMI 113 - CESTAT AHMEDABAD]. In the said case also the value was enhanced on the basis of same DGOV guideline and the tribunal has categorically rejected such methodology of the valuation and allowed the appeals filed by the appellant by passing detailed order.
Thus, the issue of method of enhancement of the valuation is as per the DGOV Circular which has been rejected by this tribunal. The present case is not different from the case on which the above order was passed. The only difference is the period. These imports were made subsequent to the imports made in earlier order dated 01.10.2019 therefore, the ratio of the above decision of this tribunal is squarely applicable in the present case. The enhancement of the value is absolutely incorrect, arbitrary and without application of mind.
The issue on which the Learned Commissioner (Appeals) rejected the appeal that once the appellant have accepted the enhancement of the value at the time of reassessment of the Bill of Entry they are not falling under the category of aggrieved person in terms of Section 128 (1) of Customs Act, 1962 - Considering the fact that the appellant had given the consent letter before the assessing authority, the enhancement of the value was rejected.
The enhancement of the value is not legal and proper hence, is rejected - Appeal allowed - decided in favor of appellant.
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2020 (6) TMI 734 - DELHI HIGH COURT
Enforcement of final Foreign Award - Territorial Jurisdiction - Respondent has filed an application objecting to the maintainability of the petitions on the ground that no part of cause of action in respect of the subject matter of the Award has arisen within the jurisdiction of this Court and since the assets of the JD are not located within the jurisdiction of this Court, there is lack of territorial jurisdiction to entertain the petitions.
HELD THAT:- The arbitration can be at a neutral Forum between the two parties and the assets may or may not be at either of the two places. This is the Forum where parties to an Arbitration Agreement agree to the arbitration proceedings being held and is the subject matter of arbitration. However, if an enforcement of the Award is filed, it is maintainable only where the properties/assets of the JD are located, which may or may not be the chosen place of the parties for subject matter of arbitration.
It needs to be noticed that in WIRELESS DEVELOPERS INC VERSUS INDIAGAMES LTD [2012 (1) TMI 391 - BOMBAY HIGH COURT], the Appellant had an Arbitral Award which was a Foreign Award in its favour and filed an application for its execution. Respondent had challenged the Award in a petition filed under Section 34 of the Act. The Appellant had sought enforcement on the ground that the Bank Account of the Respondent was within the jurisdiction of the Bombay High Court. Learned Single Judge did not entertain the enforcement petition on the ground of lack of territorial jurisdiction. It was held that impugned order refusing to exercise jurisdiction on the ground that merely because the bank account of the respondent was within its territorial jurisdiction is, therefore, incorrect and must be set aside. This Court would have to exercise its jurisdiction to enforce the award.
Thus, this Court would have territorial jurisdiction to entertain the petition. Mr. Banerjee is right in his contention that the subject matter of the Award is money and the JD has its assets within the territorial jurisdiction of this Court. The Award holders have made a categorical averment in the petitions that the JD has an Administrative Office in Delhi, as also some moveable properties lying in those premises. It is also averred that the JD has Bank Accounts in Delhi. Significantly, the JD in its application, objecting to the maintainability, has admitted that there is an Administrative/ liaison office, though on a Lease from the Government. There is no document on record at present to corroborate the stand that the premises are on Lease. Insofar as the averment of Bank Accounts or other movables are concerned, there is not even a denial. In any case, in present times, there is a Centralized Banking Systems and Accounts can be operated from any part of the country.
Insofar as the argument of the JD that it has challenged the Awards under Section 34 read with Section 48 of the Act and the appeal is pending before the Rajasthan High Court, suffice would it be to state that pendency of those proceedings cannot come in the way of the Petitioners enforcing the Award before this Court. This issue is no longer res integra and has been settled by the Supreme Court in EITZEN BULK A/S, ASHAPURA MINECHEM LTD. VERSUS ASHAPURA MINECHEM LTD. & ANOTHER, EITZEN BULK A/S, ARMADA (SINGAPORE) PTE LTD. [2016 (5) TMI 770 - SUPREME COURT]. In the said case, Ashapura Minechem Ltd. had filed a petition against Eitzen Bulk under Section 34 of the Act before the Court in Gujarat and Eitzen Bulk had filed an application for enforcement of the Foreign Award before the Bombay High Court. Contention of Ashapura was that in view of Section 42 of the Act, the application for enforcement ought to have been made before the Gujarat High Court. Bombay High Court rejected the contention of Ashapura on the ground that Section 42 is in Part I of the Act and since Part I itself had no application to a Foreign Award, Section 42 would have no application. This view of the Bombay High Court was upheld by the Supreme Court. Insofar as the issue of maintainability of the petition under Section 34 filed by the JD in Rajasthan High Court is concerned, the said issue is irrelevant to the present controversy in these petitions.
The JD is directed to file an Affidavit in Form 16-A, Appendix “E‟ CPC and disclose all its assets moveable & immoveable and tangible/intangible within a period of five weeks from today. Documents relating to the immoveable property alleged to be on lease at the address given above would also be filed by the JD, along with the Affidavit. Depending on the disclosure in the Affidavits, the issue of territorial jurisdiction of this Court would be finally decided.
List the petitions on 13.07.2020.
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2020 (6) TMI 733 - ITAT BANGALORE
Additions made u/s 40(a)(ia) of the Act for non-deduction of tax at source - Disallowance of amortization of debenture redemption premium - Disallowance of loss arising from settlement of derivative contract - HELD THAT:- Since the assessee has opted for Vivad Se Vishwas Scheme, 2020, the appellant would be moving application for withdrawing the present appeals filed before the Tribunal in due course. Since the assessee has already filed the necessary applications before the tax authorities under the above said scheme, we are of the view that no purpose will be served in keeping these appeals pending. Accordingly we dismiss all these appeals of the assessee as withdrawn.
We notice that the assessee has stated that he has not received Form no.3, in which the tax amount to be paid by the assessee shall be intimated by the department. Hence the assessee has sought adjournment till the time Form no.3 is received from the department, meaning thereby, the assessee wants to make sure that the tax liability mentioned by him in Form no.1 should get confirmed by the revenue. Under these set of facts, since we have dismissed the appeals, the assessee is given liberty to move appropriate application for recall of the present order in accordance with the law, if the assessee intends to do so.
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2020 (6) TMI 732 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor committed default in repayment of its dues - non-reponse of Corporate Debtor - ex-parte CIRP proceedings - existence of debt and default or not - HELD THAT:- The original Agreement dated 14.12.2015 was effective for a period of one year from 04.01.2016. However, the main agreement was amended vide addendum dated 13.12.2016 by extending the terms of the agreement for the additional period of one year i.e. till 30.11.2017. Again it was extended by addendum dated 28.08.2017 extending till 30.06.2018. However, the Invoices against the claim made are dated 11.05.2018, 08.06.2018, 10.07.2018 and 02.08.2018. The period of invoice covers the period from April, 2018 to July, 2018, whereas the terms of Agreement was last extended till 30.06.2018 and services were stated to have stopped from 31.07.2018 due to non-payment. However, it is asserted that once the outstanding amount is agreed by the Respondent in unequivocally terms, other issues would not be much relevance to the issue in question. It is true that the Petitioner has also filed NeSL certificate issued in accordance with provisions of Section 65B (4) of Indian Evidence Act, 1872. However, before initiation of CIRP in respect of Application/ Petition filed U/ s 9 of Code, the Adjudicating Authority has to be satisfied that debt in question should be un-disputed. In the instant case, the Respondent has not responded to the notice issued by the Adjudicating Authority, except mere statement that they are going to settle the issue. Therefore, the Adjudicating Authority is handicapped by the non-response of the Corporate Debtor and it cannot initiate exparte CIRP proceedings like in Civil Suits.
It is a settled position of law that the provisions of the Code cannot be invoked to settle the dispute(s) or to recover the alleged outstanding amount. Admittedly the Petitioner has not invoked other remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to the satisfaction of the Adjudicating Authority. As per the copy of Annual Returns for the Financial year 2017-18, filed by the Petitioner in respect of the Respondent Company, its turnover and net worth are ₹ 103,322,162 and ₹ 1,325,365,853/ respectively. Therefore, the Respondent Company prima facie appears to be solvent Company so as to resolve the issue of outstanding amount in question.
The Respondent, in the first instance, is directed to try to resolve the issue of outstanding, as it is stated to be not in dispute, failing which, the Petitioner is at liberty to invoke the Arbitration Clause No. 13 as contained in the Agreement dated 14.12.2015, and in such event, the Respondent is directed to co-operate with such arbitration proceedings to resolve the issue, instead of forcing the Petitioner to invoke legal remedy again - Petition disposed off.
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2020 (6) TMI 731 - NATIONAL COMPANY LAW TRIBUNAL
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - allegation is that demand notice has not been received by the Corporate debtor - HELD THAT:- On perusal of tracking report, it is found that however a notice was sent on 13/11/2019, which was booked from the Jungpura SO but the same was not delivered to the registered office/Pin Code of the Corporate Debtor and the notice was returned to Jungpura SO from where the article was booked. It is further found that the tracking report clearly shows that the address given by the Applicant was insufficient and it could not be delivered on the registered address of the Corporate Debtor, rather, it was returned to the Applicant. Therefore, the claim of the Applicant that he had delivered the demand notice as required under Section 8(1) of the IBC is not supported with the document. Thereafter, we have gone through the page No. 58 of the application i.e. annexure P7, which is the e-mail sent on 01/04/2019 and in this e-mail it is specifically mentioned that the notice which the Applicant sent was returned with a remark "Left" and thereafter, the Applicant sent the demand notice through e-mail "[email protected]". At this juncture, we would like to refer page 40 of the application i.e. master data enclosed by the Applicant as annexure P2/which also shows the name of the directors of the Corporate Debtor company but in the master data, the e-mail ID of the director is not given rather one e-mail ID of which the applicant claimed to sent the demand notice is given but from the perusal of the same, it can not be said that this e-mail ID is one of the persons as required under Rule 5(2) of the Adjudicating Authority Rule.
Mere plain reading of the rules shows that the e-mail ID on which the Applicant had delivered the demand notice was neither of a whole time director or designated partner or key managerial personal of corporate debtor, therefore, we have no option but to hold that the demand notice as required under Section 8(1) of the IBC has not been delivered, therefore, the claim of the Applicant that no reply as required under Section 8(2) of the IBC is given by the Corporate Debtor is not liable to be accepted.
It is found that the Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to whereas an Operational Creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Since the present application has been filed under Section 9 of the IBC, therefore, we can say that the applicant claimed that on the basis of consent decree an Operational Debt became due but when we shall read the definition of Operational Debt then we find that the decree is not included as an Operational Debt, of course definition of Creditor include decree holder but definition of Operational Creditor does not include decree holder.
A decree-holder does not come within the definition of Operational Creditor, therefore, the present application is not maintainable - Under such circumstances, generally in a case when the demand notice was not duly delivered then we direct the Operational Creditor to file a fresh application after delivery of demand notice, but here in this case, since we hold that applicant is not Operational Creditor and decree is not a Operational debt, therefore, we are not inclined to give such directions rather we held that the present application is not maintainable as Applicant is not an Operational Creditor, therefore, we have no other option but to dismiss the present application.
Application dismissed.
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2020 (6) TMI 730 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH- V
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - application is filed by Operational Creditor - Service of notice to Corporate Debtor before initiation of CIRP - HELD THAT:- Before filing the present petition, the operational creditor has sent the demand notice as required under section 8 of IBC, through speed post as well as by email, which is enclosed at Annexure-G - It is a settled principle of law that there is a difference between the procedure for initiation of CIRP by the Financial Creditors U/ s 7 of the IBC and the Operational Creditors U/ s 9 of the IBC. So far as the Financial Creditor is concerned, as per Section 7 of the IBC, there is no need to deliver the notice before the initiation of CIRP.
Therefore for the initiation of CIRP U/ s 9 of the IBC by the Operational Creditor, the Operational Creditor is required to deliver the demand notice upon the Corporate Debtor U/s 8 of the IBC. The main object of the inception of provision of Section 8 is, "This ensures that operational creditors, whose debt claims are usually smaller, are not able to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It may also facilitate informal negotiations between such creditors and the corporate debtor, which may result in a restructuring of the debt outside the formal proceedings", and that is the reason in Section 8 of the IBC, the word, 'deliver a demand notice of unpaid operational creditor' is mentioned.
Under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, there are two modes for sending demand notice, one is, either at the registered office by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the application, we find, as per rule 5(2)of the insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, the applicant had to send the demand notice either by hand, through registered post or speed post with acknowledgement due at the registered office of the Corporate Debtor or by electronic mail service to a whole time director, designated partner or key managerial personnel of the corporate debtor, and on the basis of the facts stated in the application, we find, the applicant had sent the demand notice on 23.10.2019 through the speed post, as well as though courier service but both have which returned as "Addressee left without instructions" - it can be said that the applicant has not delivered notice under Section 8 of Insolvency and Bankruptcy Code, 2016, in accordance with the provision of Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016.
The applicant has not complied with the provision contained under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, therefore, are of the the considered view that the applicant has not delivered the demand notice as required U/ s 8 of the IBC, which is the mandatory provision of law and so on this ground in the absence of delivery of demand notice as required U/ s 8 of IBC - petition filed by the applicant/ operational creditor is not complete and not maintainable and liable to be dismissed.
Petition dismissed.
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2020 (6) TMI 729 - PUNJAB AND HARYANA HIGH COURT
Vires of Section 69 and 132 of Central Goods and Service Tax Act, 2017 - HELD THAT:- Mr. Satya Pal Jain, Additional Solicitor General of India assisted by Mr. Dheeraj Jain, Advocate accepts notice on behalf of respondent no.1 whereas Mr. Sourabh Goel, Senior Standing Counsel accepts notice on behalf of respondent nos.2 & 3.
The interim bail already granted due to COVID-19 pandemic till 11.07.2020 shall stand extended till further orders.
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2020 (6) TMI 728 - PUNJAB AND HARYANA HIGH COURT
Input Tax Credit - issuing sale bills to various parties without supply of goods - Section 132 of the PGST Act, 2017 - It is thus vehemently contended that the criminal trial for the offences under Section 132 of the PGST Act, 2017 as also the arrest under Section 69 are without jurisdiction, having no backing of the constitutional provisions.
HELD THAT:- Notice of motion for 30.07.2020.
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2020 (6) TMI 727 - SUPREME COURT
Grant of Bail - non-submission of charge sheet within the prescribed period by the prosecution - Section 167(2) of the Code of Criminal Procedure - HELD THAT:- The Law Commission of India in its Forty-first Report recommended for increasing the time limit for completion of investigation to 60 days. The new Code of Criminal Procedure, 1973 gave effect to the recommendation of the Law Commission. Section 167 as enacted provided for time limit of 60 days regardless of the nature of offence or the punishment. In the year 1978, Section 167 was amended.
A three-Judge Bench of this Court in UDAY MOHANLAL ACHARYA VERSUS STATE OF MAHARASHTRA [2001 (3) TMI 1032 - SUPREME COURT], has noticed the object of enacting the provisions of Section 167 Code of Criminal Procedure Section 57 of the Code of Criminal Procedure contains the embargo on the Police Officers to detain in custody a person arrested beyond 24 hours. The object is that the Accused should be brought before a Magistrate without delay within 24 hours, which provision is, in fact, in consonance with the constitutional mandate engrafted Under Article 22(2) of the Constitution. The provision of Section 167 is supplementary to Section 57. The power Under Section 167 is given to detain a person in custody while police goes on with the investigation. Section 167 is, therefore, a provision which authorises the Magistrate permitting the detention of the Accused in custody prescribing the maximum period.
The scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days as may be applicable, an Accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.
The limitation for filing petitions/applications/suits/appeals/all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/applications/suits/appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. When this Court passed the above order for extending the limitation for filing petitions/applications/suits/appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings - the learned Single Judge in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an Accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed Under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.
Neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed Under Section 167(2) of Code of Criminal Procedure nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an Accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such restriction in the order of this Court dated 23.03.2020 - Prayer of the Accused in the said case for grant of default bail was allowed. The claim of the prosecution that by order of this Court dated 23.03.2020, the period for filing charge sheet Under Section 167 Code of Criminal Procedure stands extended was specifically rejected.
It is directed that Appellant be released on default bail subject to personal bond of ₹ 10,000/- with two sureties to the satisfaction of trial court - appeal allowed.
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2020 (6) TMI 726 - KERALA HIGH COURT
Validity of proposal to open a petroleum retail outlet by the 10th respondent - challenge is mainly made on the two grounds namely proposal is against Ext. P1 guidelines issued by the Indian Road Congress with regard to the distance and on the violation on the conditions stipulated under Ext. P3 order passed by the District Collector while permitting to reclaim and fill up the land by the predecessor in interest of the 10th respondent.
HELD THAT:- In the affidavit filed on behalf of Essar Oil Limited, Kochi (10th respondent in the writ petition), it is averred that the NOC was issued on the basis of the consent by the land owner. Thereafter, the owner of the property has also submitted an appropriate application under the Municipality Building Rules for making constructions in the proposed site. In the writ petition, a statement has also been filed on behalf of the Central Government, wherein, it is stated that the proposal for access permission for construction of an approach road to the proposed new petrol/diesel retail outlet mentioned in the writ petition falls along State Highway. Therefore, it is contended by the 10th respondent in the writ petition that it is the respective State Government, which is responsible for issuing any guideline and granting access permission to the fuel station along the State Highways.
The powers conferred under Article 226 of the Constitution of India on each High Court is independent, and each High Court under Article 226 of the Constitution of India is empowered to decide independently notwithstanding the interim order granted by a High Court in India, and even when a final decision is rendered interpreting a Central law on the grounds of competence of legislation. Whether it be legislation, delegated or subordinate legislation, it is trite law considering the difference in the views expressed by different High Courts, on a particular subject or subjects, the Hon'ble Supreme Court has approved the views expressed by some High Courts and disapproved the contrary views expressed by other High Courts. On this proposition, we do not propose to burden the instant judgment with the decisions of the Hon'ble Supreme Court.
The interim order of the Madras High Court has no binding effect on this court - there is no illegality or irregularity in the view taken by the learned Single Judge in the impugned judgment - Appeal dismissed.
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2020 (6) TMI 725 - TELANGANA HIGH COURT
Disqualification of Director of the Company - Section 164(2)(a) of the Companies Act, 2013 - deactivation of Director Identification Number (DIN) - HELD THAT:- Issue decided in the case of SRI. EMANI VENKATAPHANINDRA SATYA KRISHNA VERSUS THE MINISTRY OF CORPORATE AFFAIRS [2019 (7) TMI 1686 - TELANGANA HIGH COURT] where it was held that as the impugned orders in present writ petitions disqualifying the petitioners as Directors under Section 164(2)(a) of the Act, have been passed considering the period prior to 01.04.2014, the same cannot be sustained, and are liable to be set aside to that extent.
The present writ petition is allowed.
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2020 (6) TMI 724 - MADRAS HIGH COURT
Carry forward loss / depreciation of one eligible unit set off against the profits of another eligible unit before deduction under Section 10A - HELD THAT:- As decided in M/s.Comstar Automotive Technologies Private Limited [2020 (3) TMI 814 - MADRAS HIGH COURT] it has been held that, the deductions either under Section 10A or 10B would be made while computing the gross total income of the eligible undertaking (like the Assessee) under Chapter IV of the Act and not at the stage of computation of the total income under Chapter VI of the Act.
Accordingly, in terms of the aforesaid judgment rendered by this Court itself, the present appeal is disposed of in the same terms and the question of law framed above is answered in the same terms.
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2020 (6) TMI 723 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Approval of scheme of amalgamation - section 230-232 of Companies Act - HELD THAT:- Various directions regarding convening and holding of various meetings issued - various directions regarding issuance of various notices required to be issued for various meetings, also issued.
The scheme id approved - application allowed.
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2020 (6) TMI 722 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI
Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies - Section 252(1) & (3) of the Companies Act, 2013 - HELD THAT:- The appellant undertook to file all pending returns for the Financial Years 2016-2017 to 2018-2019 along with the filing fees and additional fees, as applicable on the date of actual filing on receipt of Restoration Order and prayed for a direction to ROC for restoring the name of the Company in the Register of Companies, maintained by the ROC, and to allow the appellant to file the pending returns.
The Tribunal is of the opinion that it would be just and proper to order restoration of the name of the Company in the Register of Companies - application allowed.
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2020 (6) TMI 721 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH-IV
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - rebuttal of presumption or not - HELD THAT:- The Corporate Debtor has issued a cheque dated 10.11.2018 for a sum of ₹12,46,524/-, which is the principal sum claimed in the present petition. The cheque return memo from the Operational Creditor's bankers placed at Exhibit G at p.30 of the Petition reveals that the reason for dishonour of the cheque is "Payment stopped by Drawer." Stoppage of cheque lawfully drawn attracts penal consequences in terms of section 138 read with section 139 of the Negotiable Instruments Act, 1881, with a lawful presumption that the cheque has been given in discharge of a lawful debt. The onus of rebutting the presumption is on the Corporate Debtor, which has not been discharged.
From the material available on record, it is seen that the Demand Notice has been served on the Corporate Debtor on 10.06.2019 - There was no reply to the Demand Notice. The Operational Creditor has placed the necessary affidavit under section 9(3)(b) also on record.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor - Application admitted - moratorium declared.
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2020 (6) TMI 720 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI, BENCH-IV
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- There has been no communication in reply from the Corporate Debtor to the Demand Notice dated 27.04.2018, in spite of receiving the same by Speed Post. The Demand Notice was also sent by FedEx Courier on 02.05.2018. Affidavit of Service dated 09.12.2019 has been placed on record - In spite of various opportunities given, there was no representation on behalf of the Corporate Debtor. Therefore, it appears that the Corporate Debtor is not interested in contesting the present petition.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2020 (6) TMI 719 - ITAT DELHI
Penalty u/s 271B - AO has already imposed penalty u/s 271A on the appellant for non maintenance of books of accounts - survey operation u/s 133A - During the assessment proceedings, the fact of surrender of undisclosed income was disputed and the AO made addition based on the statement recorded during the proceedings u/s 133A - HELD THAT:- In the instant case, the audit could not have been conducted in the absence of books of accounts. If a person has not maintained the books of accounts, the question of audit does not arise. The infraction of Section 44AB gets attracted only when the assessee maintains the books of accounts but fail to get them audited. Hence, there is no reason to initiate penalty u/s 271B. The penalty for non-maintenance of books of accounts has already been rightly levied, hence the offence has already been taken note of and the only recourse is to levy penalty u/s 271A for non-compliance of Section 44AA. These two provisions operate under two different realms.
Thus the penalty levied by the AO as confirmed by the ld. CIT (A) be obliterated.
With regard to the arguments of the ld. DR that owing to the difference in the penalties, it prima facie encourages non- maintenance of books of accounts, at this juncture, we refrain ourselves from trespassing the domain of legislature as to the difference of the quantum of penalty leviable u/s 271A and 271B. - Decided in favour of assessee.
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2020 (6) TMI 718 - ITAT MUMBAI
Estimation of income - bogus purchases - estimating the profit rate of 12.5% - HELD THAT:- Assessee has filed detailed evidences such as purchase bills, books of account, bank statement proving that the purchases are made through account payee cheques but the assessee could not produce genuiness of purchase as he was not having any evidence like transportation of goods, entry of goods in the stock register as one to one consumption pattern of alleged purchases item wise and confirmation from the parties/ concerns etc.
CIT(A) has rightly estimated the profit rate of alleged bogus purchase. But, profit rate can be estimated on some basis as in the state of Gujart VAT is at 8%, whereas in Maharashtra it is 4 to 6% varies from item to item.
Going by the fact that this material might have been purchased by assessee from grey market at a lower purchase price some element of profit is earned. A reasonable estimate can be made. Hence, estimate the profit rate at the rate of 8% of the bogus purchases and direct the Assessing Officer to recompute the income accordingly.
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2020 (6) TMI 717 - MADHYA PRADESH HIGH COURT
Review of Suspension Order - HELD THAT:- The Supreme Court in the matter of U.P. RAJYA KRISHI UTPADAN MANDI PARISHAD VERSUS SANJIV RAJAN [1993 (3) TMI 364 - SUPREME COURT] has held that the order of suspension should not ordinarily be interfered with unless it has been passed mala-fide and without there being even a prima facie evidence connecting the delinquent with the misconduct in question.
In the matter of UNION OF INDIA (UOI) AND ORS. VERSUS ASHOK KUMAR AGGARWAL [2013 (11) TMI 1767 - SUPREME COURT], Hon’ble Supreme Court considering the scope of judicial review in interference of the suspension order has held that it is not ordinarily open to Court to interfere with the suspension order as it is within exclusive domain of competent authority who can review its suspension order and revoke it. Making the scope of interference clear it has been held that where charges are baseless, mala-fide or vindictive and are framed only to keep delinquent employee out of the job, a case for judicial review is made out.
A perusal of the charge sheet reveals that there are as many as three charges and only one charge relates to the death of four persons due to the poisonous liquor consumption. Other two charges relate to the other dereliction of duties by the Respondent No. 4. Learned Single Judge appears to have lost sight of the said charge sheet while passing the order under challenge and observing that no departmental enquiry was contemplated against the writ petitioner.
If the Respondent No. 4 is entitled to continue at the same place where he was posted at the time of passing the suspension order and committing the alleged misconduct? - HELD THAT:- Permitting a delinquent employee to continue at the same place where the Departmental enquiry is held and misconduct is committed, may not be in the interest of the administration or in public interest, therefore, even if the employee concerned is not placed under suspension, then ordinarily it is in the public interest and interest of the administration and also in the interest of fair and transparent enquiry that the employee concerned is transferred from that place. Even otherwise it lies exclusively within the domain of the administration to decide as per the administrative exigency to post or transfer a particular person at a particular place - the direction of the learned Single Judge to post the Respondent No. 4at the same place where he was posted prior to suspension and transfer the appellant in WA 593/2020 to some other place cannot be sustained.
Whether learned Single Judge is justified in making observation on merits of the charge which is levelled against the Respondent No. 4? - HELD THAT:- The findings given by learned Single Judge on merits of the charge in favour of the Respondent No. 4 were not warranted because the finding in respect of the charge will be recorded by the enquiry officer/competent authority on conclusion of departmental enquiry, therefore, at this stage the Respondent No. 4 cannot be given a clean chit especially when the entire material is not before the court.
The writ appeals partially allowed by affirming the direction of the learned Single Judge to the extent it relates to quashing the order of suspension but we are unable to sustain the direction of the learned Single Judge permitting the delinquent Respondent No. 4 to continue at the present place of posting and to transfer or give posting to the appellant in WA No.593/2020 to some other place, hence it is set aside.
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2020 (6) TMI 716 - NATIONAL COMPANY LAW TRIBUNAL, PRINCIPAL BENCH DELHI
Sale of one of the non-core assets of the Corporate Debtor to clear overseas debt of Jet Airways/ Corporate Debtor to ensure six air crafts are freed from encumbrances so that it would hugely maximize the value of the Corporate Debtor during CIRP period - HELD THAT:- On looking at the averments of the application and documents annexed thereto, for there being no objection either from any member of the COC or from the charge holder of the premises i.e., HDFC, apart from this, for there being huge value addition to the Corporate Debtor, this Bench hereby allowed this application approving the resolution approved by the COC on April 24, 2020.
The applicant is hereby permitted to sell the Premises for utilising the proceeds of the sale of the 3rd and 4th floor to settle the claims of HDFC at INR 360 crores, upon HDFC giving up security interest, charge, or any other rights in respect of the Premises and withdrawing the pending Application simultaneously against receipt of the above sum of INR 360,00,00,000 with no further responsibility or liability on HDFC for or towards any further or other costs, charges, claims in connection with the insolvency process or otherwise howsoever, including in the event of any liquidation of the Corporate Debtor, and HDFC charge, security interests, and rights in Debtor, and HDFC charge, security interests, and rights in the Premises shall remain unaffected until receipt of the full sum of INR 360,00,00,000 and the balance sums remaining from the sale proceeds of the 3rd and 4th floor of the Premises towards settlement with US Exim and CIRP costs.
Application allowed.
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