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Showing 141 to 160 of 1586 Records
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2019 (10) TMI 1448 - RAJASTHAN HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Levy of penalty u/s 129(1)(b) of the Rajasthan State Goods and Services Tax Act, 2017 - respondents submitted that the writ petition is not an appropriate remedy, for which, the petitioner has approached this Court - HELD THAT:- This Court has considered the provisions, which are contained in Rule 140 of the Central Goods and Services Tax Rules, 2017 where power has been given to release the seized goods on provisional basis upon execution of a bond for the value of the goods on furnishing of a security in the form of a bank guarantee equivalent to the amount of tax, interest and penalty payable.
This Court finds that the petitioners have adequate remedy of challenging the order, which is passed by the Authority and as such, the Appellate Authority will decide as whether the adjudicating authority has passed the order in rightful manner or not. This Court is not making any comment on merits of the case and as such, it is solely on the Appellate Authority to decide the validity of the order passed by the respondents - This Court deems it proper to permit the petitioners to furnish the bank guarantee to the respondents and on furnishing such bank guarantee, the respondents may release the goods and vehicle in question. It is also made clear that bank guarantee, which will be furnished by the petitioners, will not be encashed by the respondents, till decision by the Appellate Authority.
Petition disposed off.
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2019 (10) TMI 1447 - ITAT DELHI
Income accrued in India - Centralized services fee received by the appellant for rendering various marketing, advertisement & other services to customers in India - whether taxable as “Fees for Technical Services” (FTS) in terms of Section 9 of the Income Tax Act, 1961 as well as Article 12 of the India US Double Taxation Avoidance Agreement (DTAA) - HELD THAT:- The said issue of taxability of these services as FTS u/s 9(1)(vii) was already decided by the Co-ordinate Bench of the ITA T for the assessment year 1995-96 in assessee's own case - Further, the order of the Tribunal has been affirmed by the Hon'ble High Court of Delhi [2009 (1) TMI 27 - DELHI HIGH COURT]. We hold that as on today, the issue has been covered by the judgment of Hon'ble Jurisdictional High Court, hence, no addition on this ground is called for. - Decided against revenue.
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2019 (10) TMI 1446 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Winding up proceedings - allegation is that Company committed default in filing with the Registrar of Companies, West Bengal, its financial statements or annual returns for immediately preceding five or more consecutive financial years on and from 31st March, 2013 - Section 271 (d) of the Companies Act, 2013 - HELD THAT:- Upon filing of this Petition, this Tribunal, had directed the Petitioner for publication of notice of the Petition in newspapers, calling upon objections from any interested person against the proposed order of winding up. In spite of due publication of notices of the Petitions, no one approached the Bench with any objection till date - Pursuant to the directions of this Tribunal, vide Order dated 10th June, 2019, the Petitioner has filed the affidavit of service affirmed on 31st August, 2019 evidencing newspaper publication of the notice of the Petition.
The Company, Saradha Green Fields Nirman Private Limited, defaulted in filing the balance sheet and the Annual Return immediately preceding five or more consecutive financial years on and from 31st March, 2013. The Company also has not filed its Income Tax return after 31st March, 2012 and the Company is not functioning for more than five subsequent financial years. The Company also did not respond to the intimation of default sent by the Registrar of Companies - the the Companies were formed for fraudulent and unlawful purpose. The Promoters/directors of all the Companies appeared to be guilty of offences of fraud, misfeasance and misconduct relating to the affairs of the Companies.
The Company, Saradha Green Fields Nirman Private Limited, is wound up under the provisions of Section 271(c)/(d) of the Companies Act, 2013 - application allowed.
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2019 (10) TMI 1445 - MADRAS HIGH COURT
Recovery of arrears of sales tax - charges existing against property or not - case of the petitioner is that he is a bona fide owner and his father from whom the property devolved upon him is a bona fide purchaser - encumbrances upon title of the property or not - HELD THAT:- In the present case, let us assume for a moment that an automatic charge has been created by operation of Section 24(1). Such charge, once created has remained within the domain of knowledge of only the Assessing Authority of the defaulter not having been conveyed to the public at large or converted into a tangible and enforceable charge by registration of an encumbrance with the Sub-Registrar. The orders of assessment passed upon R2 in the present case are dated 22.11.1999 for four periods of assessment, 1994-95 to 1997-98. The first move that the Commercial Taxes Department has made to consolidate their so-called claim upon the property is by issuance of letter to the office of the Sub-Registrar (SRO) on 20.03.2013 - for the period 31.12.1999 to 20.03.2013 the Commercial Taxes has rested content with the charge stated to have been created by operation of Section 24(1). This charge has no value whatsoever unless it has been followed up by the specific procedure set out under Sections 26 and 27 of the RR Act.
The procedure set out under the RR Act, which is applicable to auctions under the Commercial Tax Act, has been enacted bearing in mind the interests of all parties. The interests of the Commercial Taxes Department have been protected under Section 24(1) by providing for the creation of an automatic charge. It is further protected by Section 24-A that envisages a situation where a defaulting assessee may transfer its properties to a third party merely to defraud the interests of the revenue. In such an event, the provisions of Section 24-A would kick in and render any such transfer, which has been effected merely to defraud the revenue, void.
Section 24(1) of the Act equates commercial tax dues with a simple mortgage over the properties of a defaulter. Section 24(2) elevates the charge to the status of an enforceable priority over all other claims against any property except claims for land revenue and of the Land Development Bank subject to the procedure for recovery of such dues as set out under the RR Act, having been followed scrupulously by the Commercial Taxes Department.
It is only on 08.11.2013 that Notice in Form 4 of the Revenue Recovery Act was issued to the defaulter, i.e., R2, for collection of arrears. Form Nos.5,7 and 7A of the Revenue Recovery Act attaching the property have been issued on 08.11.2013 and 30.12.2013 and the publication of the attachment in the Namakkal District Gazette has been on 21.03.2014 at Serial nos.12, 13 and 14 of the compilation. The affixation of notice conspicuously upon the property in question and the notification of such attachment by proclamation have, admittedly not been carried out. Moreover, the events at serial nos.12 onwards have transpired long after purchase of the property by the father of the petitioner on 29.03.2002 and settlement of the property in question in favour of the petitioner on 22.06.2009 - the impugned order of attachment is set aside.
Petition allowed.
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2019 (10) TMI 1444 - BOMBAY HIGH COURT
Recovery proceedings - notices/orders of attachment - petition seeking set aside of order of attachments as the Petitioner being a secured creditor under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 has priority in recovery of its debts over the dues of the State - HELD THAT:- We note that the Petitioner has made various representations to Respondent No.1, the last being dated 30 August 2019 emphasizing its priority over the security. In spite of the above, the Respondent No.1- Tax Recovery Officer has not disposed of the same.
Respondent No.1- Tax Recovery Officer, on instruction, states that the representation of the Petitioner dated 30 August 2019 would be disposed by Respondent No.1 within a period of four weeks from today after granting personal hearing to the Petitioner. We accept the above statement. Petitioner is aggrieved by the order passed by the Tax Recovery Officer on its representation, it would be open for the Petitioner to challenge the same in accordance with law.
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2019 (10) TMI 1443 - ANDHRA PRADESH HIGH COURT
Provisional assessment and release of goods - demand of bank guarantee equivalent to 10% of differential duty - import of Areca Nuts - benefit of exemption under ISFTA Exemption Notification - HELD THAT:- It is deemed appropriate to dispose of the writ petition directing the authorities to allow provisional release of the goods in favour of the petitioner subject to the petitioner executing a bond for a sum equivalent to the 100% of the value of goods and furnishing a security in the form of a Bank Guarantee for a sum of equivalent to 30% of the differential duty, with an auto renewal clause and as per RBI guidelines.
The writ petition is disposed of.
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2019 (10) TMI 1442 - SC ORDER
Classification of imported goods - Encoder/Multiplexer/Modulator - classifiable under Customs Tariff Heading 8517 as claimed by the assessee or under CTH 8528 as claimed by the Revenue? - HELD THAT:- The appeal is admitted.
Notice need not be issued to the respondent/caveator as Mr. Chirag M. Shroff, learned counsel, is appearing on behalf of the respondent/caveator.
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2019 (10) TMI 1441 - ITAT DELHI
TP Adjustment - comparable selection - HELD THAT:- VRL LOGISTICS LIMITED - The business profile of this company is far different from that of the appellant company. Moreover, the segmental accounts are also not clear so as to make this company find a place in the final list of comparables. Considering the dissimilarity in the functioning alongwith unclear segmental report, we direct for exclusion of this company from the final list of comparables.
BIC LOGISTICS LIMITED - Similar view was taken by the co-ordinate bench in the case of CEVA Freight India Private Limited [2018 (1) TMI 1408 - ITAT DELHI] wherein the Tribunal has held that road transportation company is functionally dissimilar to freight forwarding companies. It would not be out of place to mention here that the DRP itself excluded Agarwal Industrial Corporation on this count. Considering the functional profile of this company with that of the appellant, in the light of the decision of the co-ordinate bench [supra], we direct for exclusion of this company from the final list of comparables.
CENTRAL WAREHOUSING CORPORATION - This is created by an Act of the Parliament being Central Warehousing Corporation Act, 1962 and being a Government company, earns income from warehousing charges, marketing facilitation fees, container rail transport, strategic alliance etc. The Annual Report of this company shows that it has acquired licence from the Indian Railways to run container train. Moreover, the segmental details are not available. In our considered opinion, a company engaged in two diversified services cannot be compared as comparables at entity level. We, accordingly, direct for exclusion of this company from the final list of comparables.
INNOVATIVE B2B LOGISTICS SOLUTIONS LIMITED - this company has significant RPT at 37.10% of sales and hence fails RPT filter as applied by the TPO - We find that the TPO has applied RPT filter of 25%. We are of the considered view that the TPO must look into the calculation made by the assessee and decide afresh whether this company passed the RPT filter or not. We, accordingly restore this comparable to the file of the TPO. The TPO is directed to examine the RPT and whether it passes the filter. The TPO shall given reasonable opportunity of being heard to the assessee.
GORDON WOODROFEE LOGISTICS LTD - Earlier, when the assessee applied filter of 75% of Revenue, this comparable was excluded. But later on, the TPO applied the filter and included the companies having turnover of more than ₹ 1 crore. Since this company now fits in the filter adopted by the TPO, we direct the TPO to include this company in the final list of comparables.
Adjustment on account of IGS - TPO has taken arm's length price of IGS at NIL and made an adjustment of 35.89 lakhs. The reimbursement received by the assessee has already been exhibited elsewhere. A perusal of the order of the TPO shows that the TPO has constantly hit upon the fact that the assessee has failed to demonstrate the need and benefits derived from such services - we are of the considered view that the only thing that a TPO can examine is the rendition of services and supporting evidences. We, accordingly, restore this issue to the file of the TPO. The TPO is directed to examine the rendition of services with supporting evidences and the assessee is directed to file the details for the same. This ground is treated as allowed for statistical purposes.
TDS u/s 195 - Disallowance u/s. 40a(ia) - HELD THAT:- Disallowance u/s. 40a(ia) is concerned, we find that the quarrel is squarely covered in favour of the assessee and against the revenue by the decision of the Tribunal in assessee's own case [2019 (5) TMI 1882 - ITAT DELHI] payments to non residents for providing freight and logistics services outside India, 29 is not within the purview of fees for technical services and in the absence of any permanent establishment or 'business connection in India', the same is not taxable. Since as held above that there is no 'business connection in India', therefore, we hold that the Assessee was not under an obligation to deduct tax u/s. 195 of the Act. Correspondingly, no disallowance could be made u/s. 40(a)(i) of the Act. Thus, we uphold the order of the CIT (A) and the appeal filed by the Revenue accordingly is dismissed
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2019 (10) TMI 1440 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Financial Creditors/home buyers - considerable delay being caused by the CD in completion of the project and being faced with uncertainty of the Project - demand for refund of entire amount paid by the FCS along with the interest - existence of a 'financial debt' and a 'default' was admitted - extension of time was granted to Corporate Debtor to complete the project - maintainability of complaint under RERA - Time limitation - HELD THAT:- The admission of an application under the IBC results in the commencement of the corporate insolvency resolution process while a complaint under RERA could result in the adjudicating authorities imposing penalties on the promoter and an order for return of money to the home buyer with interest and compensation.
The FCS have rightly argued that the period of default has commenced from the date when the CD was required to deliver possession of the respective units. In the present case, the flat buyer agreements in respect of all the applicants were executed in the year 2013. Accordingly, as per the Recital 'C' of the Agreement, the CD was required to deliver possession of the respective units latest by the year 2016 inclusive of grace period. Thus, the period of default has commenced latest by June 2016 for the applicants and is still subsisting whereas the present application was filed in January 2019.
The contention of the CD is that it has been granted time till 2021 to complete the said project. It is found that the argument is completely fallacious, in as much as the same would not absolve the CD of its liability to honor the commitment made to the applicants herein as per the builder buyer agreement for the purposes of the Code. Merely because the builder has been provided a different time-line for completion of the project to the RERA would not cut any ice because IBC override RERA and secondly the financial creditor is not a party to any such transaction. Moreover, there is contravention of Recital 'C' of the Agreement.
It is settled principle of law that wherever time is the essence of a contract in such types of construction contracts, the builder is required to adhere to the date of delivery mentioned in the builder-buyer agreement despite the presence of similar reservations in the contract.
Learned Counsel for the applicant has rightly argued that all requirements of Section 7 of IBC for initiation of Corporate Insolvency Resolution Process (CIRP) by a FC stand fulfilled - There is overwhelming evidence to prove default. The Applicant has specified the name of the resolution professional (IRP) and has annexed Form 2, the consent of the proposed IRP to the application accordingly.
This Tribunal finds that this is a fit case to be admitted in terms of Section 7 of IBC and thereby initiate CIRP as against the CD - Application admitted - moratorium declared.
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2019 (10) TMI 1439 - ITAT MUMBAI
TP Adjustment - comparable selection - exclusion of Infosys BPO Ltd. and Excel Infoways Ltd. - HELD THAT:- This comparable i.e. Infosys BPO Ltd. due to high turnover and extraordinary event of acquisition as well as brand value, is not comparable with the assessee, who is providing medical transcription services, information technology quality assurance in the nature of back office support services to its AE. Therefore, we direct the Assessing Officer/TPO to exclude this comparable.
Excel Infoways Ltd.company does not pass the diminishing revenue filter as adopted by the TPO himself since its revenue has decreased consistently from financial years 2009-10 to 2011-12 i.e. including the year under consideration. Further, the above company has super normal profits. We further find the submissions of the assessee that Excel Infoways Ltd. has super normal profits during the current year has not been controverted by the Revenue. We find the Mumbai Bench of the Tribunal the case of Willis Processing Services (India) Pvt. Ltd. [2015 (1) TMI 300 - ITAT MUMBAI] has upheld the order of the DRP rejecting Excel Infoways Ltd. as comparable company on the ground that the company has a super normal profit of 203.80% and low employee cost 10.02%. We, therefore, find merit in the submissions of the Id. counsel for the assessee that Excel Infoways Ltd. should be excluded from the list of comparable on account of super normal profit of the said company in the preceding year.
Thus we direct the AO/TPO to exclude Excel Infoway Ltd. from the final set of comparable. Considering the fact that we have directed to exclude the Infosys BPO Ltd. and Excel Infoways Ltd., therefore, the AO/TPO is directed to recompute the ALP of IT support services with its AE as per direction/ observation hereinabove.
Application u/s 154 - not granting set off of brought forward losses and unabsorbed depreciation against the income of current years - HELD THAT:- AO is directed to decide the application of assessee filed under section 154 in seeking the set off of brought forward business loss and unabsorbed depredation in accordance with law.
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2019 (10) TMI 1438 - ITAT DELHI
Maintainability of appeal - low tax effect - HELD THAT:- We find that the CBDT vide Circular No. 17/2019 dated 08th August 2019 has enhanced the monetary limit for filing the appeal by the department before Income Tax Appellate Tribunal, Hon'ble High Courts and Hon'ble Supreme Court.
We find that the tax effect involves in the appeal of the Revenue is below ₹ 50 lakhs. There is no dispute that the Board's instructions or directions issued to the Income-tax authorities are binding on those authorities, therefore, the Department should have withdrawn/not pressed the present appeal in view of the aforesaid instruction since the tax effect in the instant appeal is less than the amount of ₹ 50 lakhs.
Circular No. 17/2019 dated 08/08/2019 will apply to all pending appeals. Therefore the precedent, it is held that the appeal is not maintainable in the instant case as the tax effect is less than ₹ 50 lakhs. As held that appeal filed by the revenue is not maintainable. We also hastened to add that certain times instances stated in para No. 10 of the CBDT Circular No. 3/2018 dated 11.07.2018 is not discernable from the assessment and appellate orders, therefore, in such cases, we also give liberty to revenue that if such instances comes to their notice than he may file miscellaneous application with such evidences.
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2019 (10) TMI 1437 - AUTHORITY FOR ADVANCE RULINGS — MUMBAI BENCH (INCOME-TAX)]
Capital gain on Shares Buy-back u/s 45 - Whether transfer of share in PQR India Pvt. Ltd. (PQR India) by the applicant to wholly owned subsidiary, PQR India, in the course of the proposed buy-back of shares, be exempt from tax in India in the hands of the applicant, in view of the provisions of section 47(iv) - argument of AR is that section 46A of the Income-tax Act is not a charging section and that the buy-back should be read in the context of charging section 45 and section 47(iv) of the Income-tax Act and as the applicant and its nominees hold 100 per cent. of its shares in the Indian subsidiaries the buy-back would be covered under section 47(iv) and exempt from tax - HELD THAT:- As the shares are destroyed after the buy-back, there is no capital asset remaining with the transferee company. Therefore there is no further capital gains tax that can be imposed as the capital asset itself ceases to exist after the buy-back, thus making sections 47A, 49 and 155(7B) redundant. This being so, the taxation of the shares subjected to a buy-back as per section 77A of the Companies Act, 1956 can never be covered as per section 47A as the shares cease to exist after the buy-back. Such impossibility of application of section 47A, section 49 and section 155 could never be the intention of Legislature. The intention of the Legislature can never be to render any provision of the Act otiose.
In the instant case, the special provision under section 46A would prevail over the general provision of section 45 read with section 47(iv) of the Income-tax Act - without going into the controversy whether "or" is to be read as "and" in section 47(iv), it is seen that the non obstante clause in section 47 covers only section 45 and not section 46A. Section 46A is a special provision brought in with a specific objective to tax share buy-back transactions. Therefore, the discussion whether the buy-back transaction is a transfer and is covered under section 47 is not relevant.
Thus we hold that on the facts and circumstances of the case, the share buy-back transaction is taxable under section 46A and exemption under section 47(iv) is not exigible.
MAT applicability on capital gains arising to the applicant from the proposed buy-back of shares - As admitted by AR that for the assessment year 2012-13 when the buy-back has taken place, the applicant had a supervisory permanent establishment in India and that for the assessment year 2014-15 the Department has treated PQR India itself as permanent establishment in India. In view thereof and express provisions, the Assessing Officer is required to compute the book profits of the supervisory permanent establishment and the minimum alternate tax liability would be restricted to the profit attributable to permanent establishment for the relevant assessment year. We have already held that the capital gains is taxable under section 46A in the hands of the applicant under the normal provisions and thus the final liability would be lesser of two amounts, i.e., one under normal provision and other under section 115JB.
Given that capital gains arising to the applicant as a result of the transfer of shares to its wholly owned subsidiary is held to be chargeable under section 46A of the Act, the provisions of section 195 of the Act would be applicable and we hold that PQR India is liable to withhold taxes on the consideration payable for the buy-back of shares.
Ruling:
1. On the facts and circumstances of the case, the share buy-back transaction is taxable under section 46A and exemption under section 47(iv) is not applicable.
2. As regards the minimum alternate tax liability under section 115JB, the Assessing Officer is required to compute the book profits of the supervisory permanent establishment and the minimum alternate tax liability would be restricted to the profit attributable to such supervisory permanent establishment for the relevant assessment year.
3. The provisions of section 195 of the Act would be applicable and hence PQR India is liable to withhold taxes on the consideration payable for the buy-back of shares.
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2019 (10) TMI 1436 - CESTAT KOLKATA
Refund of the Education Cess and Higher Education Cess which was paid alongwith the excise duty - period July 2008 to March 2009 and April 2009 to February 2010 - HELD THAT:- Both the parties have agreed that the issue is squarely covered by the ratio laid down by the Hon’ble Supreme Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] where it was observed that the appellant were entitled to the refund of the education cess and higher education cess which was paid alongwith the excise duty once the excise duty itself was exempted from levy.
The claim of the appellant pertaining to the refund of education and higher education cess is allowed - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1435 - ITAT MUMBAI
Revision u/s 263 - income earned from the Govt. of Maharashtra as an agent - HELD THAT:- When the AO accepted the assessee is an agent and completed the assessment u/s 143(3) over the years, it means that the AO completed the assessment with one particular view, whereas Pr. CIT intends to correct the above view and presumed that the case of assessee falls under Article 289(1) and come to a conclusion that assessee is not comes under Article 289 and subjected to tax under Income Tax Act, therefore, in our view, this is another view in the case of assessee.
Pr. CIT has adopted one possible view in the present case and the order passed by Pr. CIT u/s 263 of the Act is accordingly dismissed as assessment order may be prejudicial but not erroneous. Further, the main dispute arouse due to whether assessee is an agent or not.
In the civil appeal, Hon’ble high court held that assessee is an agent as per Section 113(3A) of MRTP Act. PCIT refused to consider this decision as it is not adjudicated under Income Tax Act. We cannot neglect the Hon’ble high court findings, we have to accept the definition/ meanings by higher court and most of the time, meanings and definitions are adopted from other law or from wisdoms of higher courts in Income Tax proceedings. PCIT has taken a strange stand not to follow the Judicial precedents in order to defend his proceedings u/s 263. Accordingly order u/s 263 is set aside.
When we observed from the submissions made by Ld. Sr. Counsel and the order passed by revenue authorities, we notice that remuneration for the assessee was fixed when the company was incorporated in 1970 and as per the resolution, the revenue was fixed for the first year at ₹ 3 lakhs and increased to ₹ 5 lakhs over next two years. The revenue was frozen at ₹ 5 lakhs and was fixed in the initial years and the same revenue was continued till date without any revision. This will definitely make any authority to raise their apprehension as the income offered by the assessee are not practical but legal. Therefore, assessee should take this issue with the Govt. of Maharashtra to revise the remuneration- Appeal filed by the assessee stands allowed.
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2019 (10) TMI 1434 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor is Non-Banking Financial Company (NBFC) or not - Financial Service Provider to be included in the definition of 'Corporate Person' or not - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The undisputed fact is that the Corporate Debtor is a Guarantor in respect of the loan given to the Principal Borrower ws Amrit Jal Ventures Private Limited. The Financial creditor already filed a petition under Section 7 of IBC against Principal Borrower which was admitted. The fact that petition was filed against Borrower is not in dispute and CIRP started against the Principal Borrower. It is also not in dispute that the Financial Creditor filed a claim before IRP/RP appointed for the Principal Borrower - The question whether Financial Creditor can file a separate petition against the guarantor for the same financial debt which was stated to have been committed default by the Principal Borrower. The Financial Creditor can proceed against the guarantor. There is no restriction on the right of Financial Creditor to proceed against guarantor provided if financial creditor had not initiated any action against the Principal Borrower - Therefore, the Financial Creditor is not entitled to file again an Application for the same financial debt on the ground of default against the Guarantor.
Whether proceedings cannot be initiated against Corporate Debtor as it is not "Corporate Person" within the meaning of Section 3 (20) of IBC? - HELD THAT:- It is true, except letter and reply, Corporate Debtor has not filed any authorization or registration given by RBI recognising Corporate Debtor as financial service provider. Therefore, the Corporate Debtor cannot take any protection on the ground that it is NBFC and objects of the Company is also to do financial services - present petition filed by Financial Creditor is not maintainable against Corporate Debtor as Financial Creditor already initiated proceedings against Principal Borrower.
Petition dismissed.
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2019 (10) TMI 1433 - MADRAS HIGH COURT
Seeking to test the good - Inositol NF12 (Not for Medicinal Use) - HELD THAT:- In view of the limited prayer sought for, the writ petition is allowed, directing the respondent to test the imported goods in any of the accredited laboratory within a period of two weeks from the date of receipt of a copy of this order and give a copy of the report to the petitioner.
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2019 (10) TMI 1432 - DELHI HIGH COURT
Permission for withdrawal of petition - petitioner seeks leave to withdraw this petition with liberty to institute appropriate proceedings - HELD THAT:- The petition is dismissed as withdrawn and disposed of accordingly.
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2019 (10) TMI 1431 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Unpaid lease - claim within the meaning of provision of Sec.3(6) of Insolvency & Bankruptcy Code, 2016 or not - Operational debt or not - insufficiency of stamp duty on lease agreement - enforceable document or not - recovery of amount spent on interior/furnishing and loss of business - deficiency in services provided by the operational creditor - pre-existing dispute between the parties or not.
Scope of the term 'claim' - HELD THAT:- An outstanding sum in respect of commercial transactions need to fall within the definition of term "claim" at the first instance and, thereafter, issue of classification of such debt as to whether it is a financial debt or operational debt or other debt would arise. Basically the term "claim" is a mirror image of the term "debt" in a sense that claim is a right to payment of one person in respect of a liability or obligation of another person - the term "claim" has been given widest possible scope so that creditors rights are not restricted/narrowed down due to legal technicalities and litigation and, consequently, objects of Insolvency & Bankruptcy Code, 2016 are not defeated.
Meaning of term "debt" and "claim" - HELD THAT:- The Insolvency & Bankruptcy Code, 2016 recognises three types of debts giving birth to three different types of creditors i.e. financial creditors, operational creditors and other creditors who have been given different rights, powers and treatment under the Insolvency & Bankruptcy Code, 2016. Therefore, classification of debt as financial, operational or other debt is extremely important, for example, CIRP can be initiated only by financial creditors or operational creditors or corporate debtor itself as per Sec.6 of the Code whereas other creditors have been given right to lodge their claims during CIRP only.
The decision of the NCLT Delhi Bench in the case of MRS PARMOD YADAV, W/O SH. RAM CHANDER YADAV, MRS. SNEHA YADAV, W/O SH. SIDDHARTH YADAV VERSUS DIVINE INFRACON PVT. LTD. [2017 (11) TMI 194 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI] support our view for the reason that in the present case operations of the corporate debtor are being carried from the leased premises only, hence, the out put is produced from the said premises - In the present case, the issue is related to classification of creditor based upon nature of debt who can initiate CIRP under Sec.6 of Insolvency & Bankruptcy Code, 2016, hence, a wider and expansive meaning would meet the objects of Insolvency & Bankruptcy Code, 2016 as compared to a restricted/limited meaning given to such terms. As evident that the words "goods" or "services " have not been defined in Sec.5(21) of Insolvency & Bankruptcy Code, 2016. It is settled principle of judicial interpretation that purfusive construction should be made based upon the objects and reasons of an Act before looking meaning of undefined terms elsewhere or externally.
Thus, it is apparent that rental obligation are to be considered as operational debt and consequently claim of operational creditor.
Cost incurred on furnishing/meeting the leased premises habitable - HELD THAT:- The same cannot be considered at the stage of admission of an application filed under Sec.9 of Insolvency & Bankruptcy Code, 2016, in view of the legal position that the same needs can be considered during CIRP.
Deficiency in services - HELD THAT:- There are no material evidence has been brought on record in support of such claim. Therefore, this contention of the corporate debtor is also rejected.
The application filed by the operational creditor is otherwise complete in all respects and is in accordance with the requirement of Insolvency & Bankruptcy Code, 2016 read with relevant Regulation thereto - application admitted - moratorium declared.
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2019 (10) TMI 1430 - ITAT AHMEDABAD
TDS u/s 195 - Disallowance of commission to foreign agents - Commission income in the hands of foreign agent as chargeable to tax in India or not? - HELD THAT:- As relying on own case [2018 (11) TMI 1644 - ITAT AHMEDABAD] we do not hesitate to conclude that the commission income in the hands of the foreign agents is not chargeable tax in India in the present facts and circumstances of the case and therefore the assessee is not liable to deduct TDS. The observation made by the Learned CIT(A) does not call for any interference therefore find no merit in the appeal preferred by the Revenue. Hence, same is dismissed - Decided in favour of assessee.
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2019 (10) TMI 1429 - DELHI HIGH COURT
Seeking stay of the operation of cancellation letters dated 29/30th March, 2019 and/or 3rd April, 2019 issued by the respondent - non-payment of part of consideration - main plank of the argument of the petitioners is that although a Special Payment Plan was appended to the Apartment Buyer's Agreement, but neither of the parties adhered to the same - HELD THAT:- There is merit in this contention of the petitioners. A bare perusal of the Special Payment Plan indicates that 31st October, 2018 was the cut off date by which 70% of the consideration ought to have been paid. However, as the undisputed facts emerge, the respondent had received 70% or 57% or 60% of the sale consideration respectively in different cases and significantly on dates, different from those in the Schedule. Thus, it prima facie appears that the parties had orally entered into a different understanding, giving a go-bye to the Special Payment Plan. Neither party adhered to the 10% advance payment at the time of booking and nor were the subsequent two installments paid as per the Special Payment Plan. Seen in this light, respondent is not right in its contention that the petitioners knew the Schedule as per which the payments were to be made and there was thus no necessity to notify the petitioners for balance payments.
The respondent cannot even contend that there was a breach or a default in the installments payable by 30th November, 2018 and 31st December, 2018. Once the parties have, by their conduct, adopted a methodology different from the one in the special payment plan, respondent cannot be heard to say that the Schedule of the installment plan should have been adhered to.
There is no quarrel with the proposition that Section 9 has been enacted to give urgent interlocutory reliefs to the parties and delay is a significant factor in considering the grant of such a relief. However, the telling facts of the present cases are such that the petitioners cannot be ousted only on the ground of delay and laches, if any. The respondent had received substantial part of the sale consideration from the petitioners at a time when they needed the money for their huge investments and have without putting them to even a demand notice or a reminder, cancelled the allotments. The affidavit filed by the respondent itself shows from the allotment letters appended thereto, that the Apartments have been resold at a much higher price and, prima facie, the impression is that the cancellation was done only with the purpose to sell the Apartments at higher prices. It does seem a little strange that when parties have entered into a sale purchase agreement and have exchanged substantial amount of sale consideration, the other party would cancel the allotment without even giving an opportunity to the purchaser to make good, the balance outstanding payment - this contention of respondent is even factually not correct. Parties were exchanging letters till May, 2019 and the money received by respondent was sought to be refunded by the respondent in July, 2019. The petitions were filed in August, 2019 and in my view are not barred by delay and laches.
This Court is of the view that if the subject Apartments are not preserved, irreparable prejudice will be caused to the petitioners who have been able to set up a, prima facie, case in their favour for grant of an interlocutory injunction - respondent is hereby restrained from executing Sale Deeds in respect of the Apartments, which are the subject matter of the present petitions as well as from parting with the possession, in any manner.
Petition allowed.
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