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Showing 121 to 140 of 1486 Records
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2020 (3) TMI 1367
Assessment u/s 153C - Addition u/s 68 - reopening of assessment u/s 147 already initiated - HELD THAT:- This issue has already been adjudicated and decided in favour of the assessee by holding that on the basis of incriminating material found, once reassessment proceedings was initiated on the basis of incriminating material found in the search of 3rd party then the provisions of section 153C of the I.T. Act were applicable which exclude the application of section 147 and 148 and notice u/s. 148 of the Act and proceeding u/s. 147 are illegal and void ab initio. Therefore, respectfully following the aforesaid order of the Tribunal [2017 (8) TMI 482 - ITAT DELHI], the reassessment in question is accordingly quashed. Since I have already quashed the reassessment, there is no need to adjudicate the other grounds. Ld. DR has not brought to my notice any contrary decision on exactly similar facts and circumstances of the case mentioned in para no. 8 of the Tribunal order dated 08.08.2017, as reproduced above. Therefore, there is no help can be given to the revenue on the issues mentioned in the written submissions by the Ld. DR. Appeal filed by the Assessee stand allowed.
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2020 (3) TMI 1366
Rectification of mistake - correction of a factual error that crept in the order - HELD THAT:- It was mistakenly mentioned at para 2 of page 2 of the said order as if the final order dated 26.08.2019 passed by this Tribunal was set aside by the Hon’ble Apex Court in an SLP and remitted the matter to NCLAT. However, it transpires from the record that the Hon’ble Supreme Court merely set aside the order passed by the NCLAT and remitted back the matter to NCLAT for fresh disposal on the plea of limitation. As a legal corollary, the order dated 26.08.2019 passed by this Tribunal remains intact and is under legal scrutiny before the NCLAT.
This Tribunal has taken judicial notice of the said factual error. The IRP is at liberty to act as per law as this Tribunal has already expressed its stand in regard to the aspect of status quo in the above order as it was a mere casual observation which was not culminated into any direction - Application disposed off.
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2020 (3) TMI 1365
Validity of approved Resolution Plan - HELD THAT:- The ‘Resolution Plan’ has been approved by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench by impugned order dated 26th November, 2019. The free certified copy of the impugned order having been issued on 21st February, 2020, the Appeal is within time - However, no prima-facie case seems to have been made out by the Appellant to suggest violation of any of the grounds shown in Clause (3) of Section 61 of the Insolvency and Bankruptcy Code, 2016.
Merely because Enforcement Directorate had taken steps against the erstwhile Promoters of the ‘Corporate Debtor’, cannot be a ground for interference against the order of approval of ‘Resolution Plan’ - Post the case ‘for admission (fresh case)’ on 26th March, 2020.
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2020 (3) TMI 1364
Rectification of mistake - Non Maintainability of appeal on low tax effect - Tax effect below the monetary limit - HELD THAT:- As assessee fairly accepted that the tax effect involved in the present appeal is more than the prescribed monetary limit of ₹ 50 lakh therefore, the order of tribunal dated 1st January 2016 may be recalled and the appeal may be fixed for hearing on merit.The registry is directed to fix the appeal for hearing by regular bench. MA filed by the revenue is allowed.
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2020 (3) TMI 1363
Approval of Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- This Adjudicating Authority is satisfied that the Resolution Plan as approved by the Committee of Creditors under SubSection (4) of Section 30 of Insolvency and Bankruptcy Code, 2016 meets the requirement as referred in Section 30 of Insolvency and Bankruptcy Code, 2016 Sub Section (1), (2), 2a, 2b, 2c, 2d, 2e, 2f, (3), (4), (5)8&(6) and has provisions for its effective implementation.
This Adjudicating Authority is hereby approved the Resolution Plan submitted by the Resolution Professional as approved by the CoC - Moratorium declared.
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2020 (3) TMI 1362
Deduction u/s 80IC - treating interest income from bank, from customers, from security deposit relates to business activities - HELD THAT:- Hon’ble Apex Court in CIT Vs. Govinda Choudhury [1992 (4) TMI 8 - SUPREME COURT] wherein the Hon’ble Apex Court held that the interest awarded to the assessee therein in an arbitration proceeding for delayed payment in a contract executed by the assessee was to be recorded as business income and could not be treated as ‘income from other sources’ and upheld the action of the Tribunal.
According to Ld. AR in the present case, the assessee had sold the C. R. coil manufactured from its eligible undertaking to customers on credit and when there is a delay in making payment by the customers to assessee, then the assessee charged interest upon the customers which have been shown by the assessee as interest income from the customers.
Therefore, according to Ld. AR since the interest income for delayed payment from the customers for the product manufactured by the assessee are to be treated as Business Income in the light of the Hon’ble Supreme Court decision in Govinda Choudhury (supra), the income thus derived by the assessee from the undertaking it is eligible for deduction u/s. 80IC(2) - therefore, the AO’s action of not allowing deduction is per se erroneous.
We are not inclined to decide these grounds since it is noted that the Ld. CIT(A) has not adjudicated the issues relating to two issues i.e. deduction in respect of income from delayed payment from customers and interest on security deposit (electricity), therefore, both these issues are set aside back to the file of the Ld. CIT(A) for fresh adjudication with a direction to decide the issues in accordance to law after hearing the assessee and without being influenced by any observation made by us supra.
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2020 (3) TMI 1361
Seeking stay of order - demand of service tax with interest and penalty - waiver of pre-deposit pending disposal of appeal - HELD THAT:- This Court directs the 1st respondent to dispose of the appeal filed by the petitioner, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of six weeks from the date of receipt of a copy of this order.
Petition disposed off.
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2020 (3) TMI 1360
Seeking judicial review of dismissal from the Uttar Pradesh Higher Judicial Services by Respondent - illegal gratification - HELD THAT:- Any 'probability' of misconduct needs to be supported with oral or documentary material, even though the standard of proof would obviously not be at par with that in a criminal trial. While applying these yardsticks, the High Court is expected to consider the existence of differing standards and approaches amongst different judges. There are innumerable instances of judicial officers who are liberal in granting bail, awarding compensation under MACT or for acquired land, backwages to workmen or mandatory compensation in other cases of tortious liabilities. Such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer.
It is evident in the case in hand that the High Court itself was cognizant of this settled proposition of law. Learned senior Counsel for the Appellant also finds no fault with these principles, and instead only seeks for their application to the facts of the present case.
It is a matter of record that at the time when the High Court was seized of this matter, writ petitions against both of the Appellant's land acquisition judgments had been dismissed by its coordinate benches. The High Court has, nevertheless, rightly observed that dismissal of writ petitions against the Appellant's orders did not serve as vindication or confirmation of her orders. Indeed, as correctly noted by the High Court, the scope of judicial review Under Article 226 is limited - the dismissal of writ petition merely signifies the failure to demonstrate any of these high standards, in a particular case, and not the endorsement of the orders passed by a subordinate authority.
There is no explicit mention of any extraneous consideration being actually received or of unbecoming conduct on the part of the Appellant. Instead, the very basis of the finding of 'misbehaviour' is the end result itself, which as per the High Court was so shocking that it gave rise to a natural suspicion as to the integrity and honesty of the Appellant - petition allowed.
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2020 (3) TMI 1359
Seeking grant of ad-interim relief in favour of plaintiffs - restraint to defendant no.2 from taking any steps for selling the shares in the market - HELD THAT:- It is to be noted that when Debenture Trust Deed was executed, market value of the shares were ₹ 350 per share and because of COVID-19, share market has collapsed and per share comes below ₹ 100.
Considering the present situation of market and COVID-19, it is opined that plaintiffs are required adinterim protection till next date - it is declared that the Mandatory Redemption Event Notices dated 11 March 2020 and 13 March 2020 (Exhibits D-I and D-2 hereto), and the Event of Default Notices dated 17 March 2020 (Exhibits E-1 and E-2 hereto) and Notices of Sale dated 18 March 2020 (Exhibits F-1 and F-2 hereto), are all illegal and/or invalid and/or improper - a permanent injunction restraining the Defendants from acting upon and/or giving effect to and/or implementing, directly or indirectly, in any manner whatsoever is granted.
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2020 (3) TMI 1358
Seeking further time to the appellant herein for producing documents in support of the valuation of the property - change of status of the said property from "agricultural land" to "urban area / urbanised area" - HELD THAT:- The Arbitrator has proceeded on the basis of the documents that were filed before it. The Notification and the judgment that are sought to be relied upon by the appellant in the present appeal were admittedly not produced before the Arbitrator either along with the application or during the hearing of the application. The appellant cannot be permitted to rely on the said documents for the first time in the present appeal in order to argue that the impugned Order suffers from an error. The respondent is right in its contention that the documents now sought to be relied upon were in existence before the application was filed by the appellant and the appellant should have been cautious and diligent enough to file the said documents along with the application.
The appeal is dismissed.
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2020 (3) TMI 1357
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors failed to show that Corporate Debtor is insolvent - misuse of I&B Code - existence of debt and dispute or not - HELD THAT:- The operational creditor failed to show that the amount so claimed is 'due' and payable to the operational creditor and has also failed to show that the corporate debtor is insolvent. When the objective of the I & B Code 2016 is to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of all the stakeholders including alteration in the priority of payment of government dues and to establish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto, liquidation brings the life of a corporate to an end. Hence, the I & B Code cannot be allowed for the purpose of arm twisting when the amount is not due and payable and/or has not yet been paid.
On perusal of the records it appears that the operational creditor intentionally filed this application with some malicious intent so as to pressurise the corporate debtor, where the legislation intention is purely based on the resolution of the company. That, the operational creditor failed to show that the corporate debtor is insolvent. That, all the invoices are time barred. That apart, no documents like purchase orders, delivery challans, lorry receipt etc. are produced in order to show that the goods were delivered.
It is a fit case where a penalty of ₹ 1.00 lac has to be imposed upon the operational creditor for misusing the I & B Code. Accordingly, a sum of ₹ 1.00 lac is imposed upon the petitioner which is payable to Army Welfare Fund within ten days from the date of this order.
The application, so filed by the applicant is not maintainable and is bad in law as well as in facts - Application dismissed.
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2020 (3) TMI 1356
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Admittedly, there is a debt which is due and default has occurred in payment thereof. The amount of undisputed debt is more than Rupees One Lac after considering the claim made by the financial creditor to exclude the amount of impugned debt from the claimed amount made against M/s. Avani Projects and Infrastructure Limited in separate CIRP proceedings. The debt also falls in the category of financial debt, hence, no dispute remains as regards the nature thereof.
The application is otherwise complete and defect-free - Application admitted - moratorium declared.
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2020 (3) TMI 1355
Sanction of scheme of amalgamation - seeking direction for convening of an Annual General Meeting and for other consequential reliefs - Section 96 of the Companies Act, 2013 - HELD THAT:- In the event of default in holding the Annual General Meeting of a company under Section 96, this Tribunal is empowered under Section 97 of the Companies Act, 2013, for issuance of a direction for calling of an Annual General Meeting - Respondent Nos.2 and 3, who are the Directors of respondent No.1- company have not denied the mandatory obligation of respondent No.1- company to hold the Annual General Meeting within the prescribed period.
In view of the mandatory requirement under the provisions of the Companies Act, 2013 and in view of the paramount interest of the company, as also the submissions made on behalf of both sides, it is considered fit case of exercising the powers conferred under Section 97 of the Companies Act, 2013 - Respondent Nos.1 to 3 to convene, hold and conduct the Annual General Meeting within 30 days from today on any working day during business hours i.e. 9 AM to 6 PM, at the registered office of the respondent No.1-company at Gurugram, after duly certifying strict compliances of the procedures as contemplated under the Articles of Association of the company and the Companies Act, 2013.
Application allowed.
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2020 (3) TMI 1354
Seeking release of the goods seized by the respondents - HELD THAT:- It is directed that the petitioner to furnish bank guarantee equivalent to 30% of the differential duty and for the remaining amount, solvent surety to the satisfaction of the officer concerned. On furnishing such bank guarantee and solvent surety, the goods shall be released. It is made clear that bank guarantee so furnished by the petitioner shall be renewed from time to time until finalization of the proceedings.
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2020 (3) TMI 1353
Exemption u/s 11(2) denied - assessee has filed Form no.10 manually - Central Processing Centre (CPC) denied assessee’s claim of exemption u/s 11(2) since the declaration in Form no.10, was not filed electronically along with the return of income - HELD THAT:- Assessee has filed Form no.10, manually before the AO on 28thSeptmber 2015, the very same date the return of income for the assessment year 2015–16, was filed by the assessee. On a perusal of rule–17, as it existed prior to its amendment/substitution by Income Tax (1st Amendment) Rule, 2016, w.e.f. 1st April 2016, the provision only required filing of Form no.10, before the expiry of the time allowed under sub–section (1) of section 139 of the Act for furnishing return of income. Only w.e.f. 1st April 2016, amended rule 17 provided for filing Form no.10 electronically before the due date of return of income u/s 139(1) of the Act. That being the case, assessee’s claim of exemption under section 11(2) of the Act cannot be rejected only for the reason that Form no.10, was not filed electronically.
We restore the issue to the Assessing Officer with a direction to verify Form no.10, filed by the assessee manually, as stated by the learned Counsel for the assessee and allow assessee’s claim of exemption under section 11(2) of the Act. Grounds are allowed for statistical purpose.
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2020 (3) TMI 1352
Seeking withdrawal of Application under Section 9 of IBC - Committee of Creditors (CoC) has not yet been constituted and that although CoC is not constituted, IRP has received claim of ₹ 4 Crores from Bank of Baroda - IRP has grievance that no clear assurance regarding CIRP costs and payment of Fee of IRP is there - HELD THAT:- This Appeal is disposed off, permitting the Appellant to pursue the matter before the Adjudicating Authority with regard to withdrawal of Application under Section 9 of IBC, which Application is stated to have been filed by Respondent No. 1- Operational Creditor - The Adjudicating Authority will deal with the matter calling response from IRP.
Appeal disposed off.
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2020 (3) TMI 1351
Fixation of professional fee and cost of 'Resolution Professional' - Appellant is unhappy with the amount fixed but we are not inclined to interfere with such amount - HELD THAT:- There are no ground to interfere with the impugned order passed by the Tribunal.
Appeal dismissed.
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2020 (3) TMI 1350
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time limitation - date of default from the date of non-performing asset - time limitation of 3 years fulfilled or not - HELD THAT:- It is now undisputed legal position that, while, filing the present Petition under Section 7 of the I.B. Code, only article 137 of the Limitation Act would attract which provides that the application can be filed within three years from the right to sue accrue i.e. the date of default from the date of non-performing asset declared by the lender bank.
Undisputedly, in the present matter, the date of default is 01.01.2008, while the present I.B. petition came to be filed before this Bench on 19.01.2019. However, by a careful examination of such issue of limitation, it is evident and the matter of record as being admitted position that the Corporate Debtor itself had wrote a letter offering one time settlement ("OTS") to the present Financial Creditor on 19.03.2005 and such proposal was got approved by the Financial Creditor vide its letter dated 20.04.2005 for payment of 100% of principal amount of ₹ 300 Lakh within three months. It is also evident that the Corporate Debtor duly accepted by signing the above stated one-time proposal. This fact has been further admitted by the Corporate Debtor vide its reply dated 26.08.2008 to the statutory demand notice (under Section 13(2) of the SARFAESI Act) by the Petitioner, wherein, the Corporate Debtor took such plea that company is still keen for OTS and was looking for alternative source of funding including sale of its surplus land.
It has held that the Corporate Debtor has accepted the settlement proposal OTS and again confirmed its debts due as per terms of OTS in its reply dated 26.08.2008 which can be considered as valid acknowledgement of its debt liability to the extent of certain sum of ₹ 300 Lakhs which is obviously more than of rupees one lakh. Hence, the Corporate Insolvency Resolution Process (C.I.R.P.) can very well be triggered in respect of the Corporate Debtor provided that such petition is filed within the limitation period.
The commencement of limitation for the present matter would start from the date acknowledgement for debts due and payable under one time settlement, i.e. 26.08.2008 (the date of reply admitting of debt) or 20.04.2005 the date of OTS which was assured to be complied with by the Corporate Debtor. Further, the period spent in during the pendency of SICA proceedings is required to be excluded. It is further found that the present petition is filed within the remaining period of three years from 01.12.2016. Admittedly, the Petitioner/Financial Creditor has filed the present petition on 10.01.2019, which is found to be filed within three years after exclusion of such period consumed in the SICA proceedings.
Petition is maintainable and is admitted - moratorium declared.
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2020 (3) TMI 1349
Dishonor of Cheque - acquittal of the accused - failure to rebut the presumption by adducing any cogent evidence - existence of debt or not - HELD THAT:- To show that as on the said date the outstanding amount was ₹ 5,25,000/-, complainant has not produced any document. It is not the case of the complainant that the accused borrowed a sum of ₹ 5,25,000/-. On the other hand it is his case that over a period of time, the accused borrowed the amount and there was a balance of ₹ 5,25,000/- as on 24.05.2006. When such is the case, it is for the complainant to convincingly establish that the amount due as on 24.05.2006 as per the ledger maintained by him was ₹ 5,25,000/-. Though the complainant has stated that he has maintained the ledger, he has failed to produce the same before the trial Court.
The defence taken by the accused that the cheque in question was received by the complainant as a security appears probable. The complainant has failed to prove that the accused was due a sum of ₹ 5,25,000/- as on 24.05.2006. From the evidence on record it cannot be said that Ex. P1-cheque was issued by the accused in discharge of a legally recoverable debt - the complainant has failed to prove the cheque-Ex. P1 was issued by the accused towards discharge of his outstanding dues. The reasons assigned by the trial Court cannot be said to be either perverse or illegal.
Appeal dismissed - decided against appellant.
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2020 (3) TMI 1348
Appeal against a money decree - disposal of assets or alienate the same during the pendency of the appeal - HELD THAT:- Since the operation of the decree has not been stayed, it is open to the respondent to levy execution and seek the necessary protection. The injunction sought would not fall within the scope of this appeal.
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9911796707
