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2021 (11) TMI 1057 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking revival of Resolution Plan - Consensus for Settlement Plan reached or not - HELD THAT:- It is pertinent to mention that the existing Promoter was originally landowners of the land on which the Project "Orion Galaxy" is situated and had entered into the development agreement with erstwhile promoters of the Company to develop the project "Orion Galaxy". However, due to various reasons, the Project could not be completed by the erstwhile promoters on time, and as a result, the existing Promoter took control of the Project in 2017 and finally got complete control of the Company after 31.10.2019 when the existing Promoter purchased 100% shares of the Company after the order of NCLT, New Delhi.
The Company has mainly launched Phase-I of the Project, in which 470 units, out of 542 units, have been sold out. In Phase-II, the Company has booked only 79 units, out of which 57 units have been booked and allotted to related parties, and only 22 units are sold to end-users/customers - The existing Promoter/Suspended Directors of the Company justifying the purported settlement plan submits that "the Company requests to all the Stakeholders of the Company and the Project, to approve the aforesaid revival plan and allow the Management/Promoter to restart the construction.
There are the following major reasons to approve the Revival Plan in the best interest of the Project and the Company:
a) The existing management is fully aware of the Project; in case there is a change in the management, the new management will take time to understand the various aspects of the Project.
b) The CIRP process will only delay and proposed revival plan. However, the existing management will complete the Project within 15 months.
c) The CIRP process will additionally burden the Project with additional costs.
d) There is no clarity on who will bid for the Project and what will be offered.
e) The management has agreed to hand over the Project in a time-bound manner and without any additional cost burden to the Buyer.
f) The existing management will provide an approach road before completion of the Project.
g) The Promoters has agreed to provide Personal and Corporate Guarantee for taking finance for the Project and made the provision and back up to start immediately without wasting any time."
It is important to mention that no settlement plan encompassing all the allottees has been filed to date - It appears that the Appellant made a misleading statement before the Hon'ble Supreme Court that the settlement plan dated 13th February 2020 covers all the allottees. In fact, to date, there is no settlement plan covering all the allottees. There is no consensus among the allottees. Some of the Allottees favour the Settlement Plan, and others oppose the same. There is nothing on record to show that there is consensus for the purported Settlement plan. There is a trust deficit among the homebuyers. The proposed Reverse Insolvency appears to be a device for buying time. Based on the settlement plan and lack of consensus among allottees of flats and the present Promoters, there is no hope of success in arriving at a settlement.
The Settlement Plan dated 12th February 2020 and the further Revised Settlement Plan dated 12th March 2021 deserves to be rejected - However, the settlement process is provided under Section 12A of the Insolvency and Bankruptcy Code, 2016. Therefore, if settlement takes place, the same can be filed U/S. 12A of the Code before the Adjudicating Authority.
The Appeal is listed for hearing on 25th November 2021.
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2021 (11) TMI 1056 - ITAT BANGALORE
TP Adjustment - Exclusion of Infosys BPO Limited & TCS E-Serve Limited - HELD THAT:- In the instant case, the profile of the assessee and that of the profile of assessee in the case of M/s.Indecomm Global Services (India) Private Limited are similar. The assessment year concerned this case and in in the case of M/s.Indecomm Global Services (India) Private Limited is 2012-2013. Therefore, respectfully following the Co-ordinate Bench order of the Bangalore Tribunal in the case of M/s.Indecomm Global Services (India) Private Limited [2019 (8) TMI 1664 - ITAT BANGALORE ] we direct the AO / TPO to exclude Infosys BPO Limited and TCS e-Serve Limited from the list of comparables.
Depreciation Adjustment - HELD THAT:- It is clear if there is difference in depreciation in the case of assessee and the comparable cases, reasonable depreciation adjustment is to be made to determine the arm’s length of the international transaction. On perusal of the TPO’s order and the DRP’s order, confirming the same, it is clear that the directions of the Tribunal in its earlier order has not been given effect to. TPO has admitted that depreciation cost of the comparable companies is lesser than the assessee (since deprecation policy followed by comparable companies is as per Companies Act, whereas the assessee was showing higher rate of depreciation based on some agreement. Hence, suitable depreciation adjustment ought to have been made by AO / TPO. Therefore, this issue is restored to the files of the AO / TPO. AO / TPO is directed to allow depreciation adjustment if they notice the rate of depreciation are different in the case of the assessee and the comparable cases. Therefore, ground 4 is allowed for statistical purposes.
Negative Working Capital Adjustment - HELD THAT:- Admittedly in this case, the assessee is a captive service provider and it is operating on cost plus basis. Therefore, following the order of the Tribunal in the case of ACIT v. e4e Business Solutions India Private Limited [2020 (12) TMI 1255 - ITAT BANGALORE], we hold that there should not be any negative working capital adjustment. It is ordered accordingly. Therefore, ground 7 is allowed.
Deduction of Educational Cess - HELD THAT:- On identical facts, the Bangalore Bench of the Tribunal in the case of DCIT v. GE BE Private Limited [2020 (11) TMI 1057 - ITAT BANGALORE] had held that educational cess is to be allowed as a deduction.We direct the AO / TPO to allow the educational cess as a deduction.
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2021 (11) TMI 1055 - MADRAS HIGH COURT
Protective assessment u/s 143-A - Settlement of case under the Vivad se Vishwas scheme under VSV Act, 2020 - first respondent passed an order under Section 154 by concluding that the petitioner was indeed entitled for refund on sum paid as proportionate tax paid on the advance which was offered as tax by the petitioner and further interest under Section 244A - HELD THAT:- There is no dispute that the petitioner has paid the tax for the relevant assessment year viz., 2011-12 and therefore, the protective assessment for the year 2014-15 results in excess payment of tax. The petitioner cannot be taxed twice on the same income. Ultimately, the purpose of exercising power under the Act is only intended to collect correct and just tax under the provisions of the Income Tax Act, 1961 from an assessee. The Act is not intended either to collect or retain any amount which is not due from an assessee.
In this connection, a reference may be made to the decision of the Hon'ble Supreme Court in Unichem Laboratories Ltd vs. Collector of Central Excise, Bombay [2002 (9) TMI 110 - SUPREME COURT] wherein the Hon'ble Supreme Court held that it is no part of duty of the department to levy and collect tax which is not due to the department.
As the department has also not disputed the fact that the petitioner has settled the dispute under the Vivad se Vishwas scheme for the assessment year 2011-12 as a consequence of which the tax offered and paid by the petitioner during the assessment year 2014-15 had become excess.
That apart, under Section 237 under Chapter XIX of the Income Tax Act, there is no limitation prescribed for granting refund of the amount paid in excess as tax. Therefore, I do not find any merits in the submissions made by the learned Senior Standing Counsel appearing on behalf of the respondents. Therefore, these Writ Petitions deserves to be allowed.
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2021 (11) TMI 1054 - CALCUTTA HIGH COURT
Seeking reply of letter addressed to the petitioner - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to give reply to the letters issued by the respondent concerned within a fortnight from date and if such reply is filed by the petitioner within the stipulated time respondent concerned shall consider the same in accordance with law and take a final decision within four weeks from such reply and communicate the same to the petitioner.
The writ petition disposed off.
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2021 (11) TMI 1053 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - it is alleged that instead of responding to One Time Settlement (OTS) proposal of the Appellant, Respondent No.2 filed application under section 7 of the IBC against the Corporate Debtor - HELD THAT:- From perusal of the Impugned Order dated 26.8.2021, it is clear that in response to the section 7 application, the Managing Director of Corporate Debtor representing Respondent Nos. 1 to 5 filed reply which was considered by the Adjudicating Authority. It is also mentioned in the Impugned Order, paragraph 12 that Mr. Tushar Ravi, Chief Manager, State Bank of India, Khanapara Branch filed an affidavit dated 4.8.2021 in which he stated that due to inadvertence names of the personal guarantors were inserted as Respondent Nos. 2 to 7 and the names of Respondent Nos. 2 to 7 be deleted from the instant application - the contention of the Appellant that the petitioner (financial creditor-State Bank of India) did not comply with the order given by the Adjudicating Authority on 26.7.2021, which was regarding filing of affidavit to delete names of personal guarantors from the section 7 application, cannot be agreed upon.
The other contention of the Learned Counsel of the Appellant is that the Appellant had submitted an OTS proposal to the financial creditor (State Bank of India), which was pending decision, and hence the Adjudicating Authority should not have passed admission order on section 7 application. The acceptance of the settlement proposal by the financial creditor is a matter entirely in the ambit of the financial creditor (SBI) and we do not think that the proceedings before the Adjudicating Authority should have been held up and delayed, waiting for a response by the State Bank of India. IBC does not provide for keeping the proceedings in abeyance and the application for admission has to be decided in a stipulated timeframe. If a settlement would have been reached, the Appellant would have had recourse to Section 12A of the IBC.
The Innoventive Industries judgment [2017 (9) TMI 58 - SUPREME COURT] of the Hon’ble Supreme Court does not put any bar on the admission of an application under section 7 if the defects as pointed out to the petitioner have been cured.
Appeal dismissed.
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2021 (11) TMI 1052 - SC ORDER
Seeking for restoration of the name of the Company in the Register of members maintained by ROC - Section 252(3) of the Companies Act, 2013 - Divergent views among members - HELD THAT:- Issue Notice.
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2021 (11) TMI 1051 - PUNJAB & HARYANA HIGH COURT
Classification of imported goods - Glass - to be classified under Entry 7005 10, i.e. ‘non-wired glass, having an absorbent, reflecting or non-reflecting layer’ or under Entry 7005 21, which is ‘other non-wired glass coloured through the mass (body tinted), opacified, flashed or merely surface ground’? - benefit of the Notification No. 46/2011-Cus., dated 1-6-2011 - HELD THAT:- It would be seen that in the reply, the petitioner had only been making demands for documents and trying to give a legal colour to a purely factual aspect but did not even bother to state that in fact the material imported by them was not full body (other non-wired glass coloured through the mass (body tinted), opacified, flashed or merely surface ground) and covered by Entry 7005 21, or how it would be said to be covered by Entry 7005 10. It is thereafter that the impugned order has been passed.
The impugned order is extremely detailed and has given entire analysis not only of the product imported by the petitioner, but also quoted all the tests reports etc. We fail to understand why the petitioner did not file any detailed reply or did not submit any report from some other laboratory which may have supported the stand of the petitioner. It is not the case that the relief sought cannot be granted by the Appellate Authority. In the facts circumstances of the case, we are not inclined to interfere under the extra ordinary jurisdiction of this Court and dismiss this writ petition.
Petition dismissed.
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2021 (11) TMI 1050 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Appointment of one or more competent persons as Inspectors to investigate the affairs of the 1st respondent Company - seeking direction to 1st respondent to reimburse and compensate the petitioner - Section 213 of the Companies Act, 2103 r/w Rules 11, 13, 14, & 80 of the NCLT Rules, 2016 - HELD THAT:- The present Petition falls under sub-section (b) of Section 213 of the Companies Act, 2013 and as per the said Section the Petitioner is required to satisfy this Tribunal that there are circumstances suggesting that the business of the 1st Respondent company is being conducted with intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive to any of its members or that the company was formed for any fraudulent or unlawful purpose.
All the averments made in the Petition by the Petitioners are not supported by any material documents in order to substantiate such allegations. The documents filed by the Petitioner and listed in para 17 supra and a perusal of the said documents filed along with the Petition would show that the allegations made by the Petitioner are not corroborated with the documents filed therewith. Prima facie, the Petitioner has miserably failed to make out a case under Section 213(b) of the Companies Act, 2013 and has also failed to satisfy this Tribunal that the affairs of the 1st Respondent Company have been conducted in a fraudulent manner or unlawful purpose and on the said count itself this Petition is liable to be dismissed.
The Petition as filed by the Petitioner under Section 213 of the Companies Act, 2013 stands dismissed.
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2021 (11) TMI 1049 - SUPREME COURT
Seeking grant of bail - HELD THAT:- The High Court has not dealt with these aspects which were relevant, including the statutory bar for grant of bail in offences concerning Prevention of Money Laundering Act.
However, as the respondents have already been released on bail pursuant to the impugned judgment that protection will continue for a period of two weeks from today.
The High Court after hearing the parties may proceed to pass the final order on the original petitions and if it cannot be disposed of may consider the argument regarding continuation of interim protection and pass appropriate orders after hearing both sides - Appeal disposed off.
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2021 (11) TMI 1048 - DELHI HIGH COURT
Seeking production of documents - Part of documents which have been filed in Court by CBI - documents though seized or collected during investigation, but not filed in Court - documents referred to or reflected in correspondence of CBI and other authorities or in statements of witnesses - stand of the CBI was that since the same were not relied upon by the CBI in the charge-sheet, these documents cannot be given to the accused - HELD THAT:- The issue raised in the present petition is to a great extent dealt by the Hon’ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 [2021 (4) TMI 1270 - SUPREME COURT] wherein the Hon’ble Supreme Court issued guidelines regarding inadequacies and deficiencies in criminal trial and while the necessary draft rules were approved, in relation to the documents collected during the course of investigation and not relied upon by the prosecution thus not permitting copy thereof to the accused, the Hon’ble Supreme Court has held that This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused.
In view of the decision of the Hon’ble Supreme Court, CBI cannot take the plea that since the Rules have not been notified as yet pursuant to the decision of the Hon’ble Supreme Court, the directions as laid down in Para 11 of the judgment whereby the draft Rules were amended, would not have the force of law till the Rules are notified. In the decision VISHAKA & ORS. VERSUS STATE OF RAJASTHAN & ORS. [1997 (8) TMI 456 - SUPREME COURT] Hon'ble Supreme Court in a writ petition under Article 32 of the Constitution of India, in the absence of an enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee of sexual harassment and abuse and more particularly against sexual harassment at work places, laid down the guidelines and norms for due observance at all work places or other institutions, until a legislation is enacted for the purpose. Hon'ble Supreme Court noted that the guidelines were laid down in exercise of power under Article 32 of the Constitution of India for enforcement of the fundamental rights and further emphasized that the guidelines laid down should be treated as law declared by the Supreme Court under Article 141 of the Constitution of India.
In the present case after the Court has taken the cognizance and is in the process of supplying documents, applications have been filed under Section 207 Cr.P.C. wherein to ensure a fair trial, the impugned order has been passed by the learned Special Court keeping due regard to the fact that at that stage it was deciding neither the relevancy of the unrelied documents nor whether they were of sterling quality.
Indubitably, while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on - In relation to the documents which have not been filed in the Court, the learned Trial Court did not direct the CBI to produce the said documents in Court and held that the ends of justice would be met if the accused persons are permitted to inspect the said documents lying in the Malkhana of CBI and to find out if any such document is relevant or vital for their defence or is of sterling quality to demolish the very case of prosecution and after making inspection learned counsel representing these accused shall let the Court know the details of these documents so that copies thereof can be supplied to them.
By the impugned order, the learned trial Court has already clarified that the permission to conduct inspection being granted by the Court was not in respect of those documents in relation to which the investigation by the CBI was still pending. Therefore, the apprehension of the CBI that inspection would hinder in the further investigation is wholly unwarranted. Claim of learned counsel for the CBI is that the CBI at the moment cannot pre-empt which document would be necessary for the further investigation - In the present case charge sheet has already been filed and thus the claim of CBI that it is not aware which document would be relevant for further investigation is unwarranted.
This Court finds no infirmity in the impugned order passed by the learned Special Judge - Petition dismissed.
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2021 (11) TMI 1047 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Seeking inspection of the records of the company with the help of an Auditor or any person, to video graph the entire proceedings of the 28thAGM dated 23.11.2021 - seeking appointment of observer to the said meeting - HELD THAT:- It is felt necessary to appoint an observer for AGM to be held on 23.11.2021. Accordingly, Mr. P. Nagesh, Sr. Counsel is appointed as an observer to watch the proceedings of the 28th AGM dated 23.11.2021 and submit a report. The appropriate fee of the Observer shall be fixed by the Court on receipt of the report of the Observer.
The entire proceeding of the AGM shall be video recorded and produced before this Court. Besides the Petitioner will be entitled to have inspection of any statutory records or any financial statements through a reputed Chartered Accountant or a Company Secretary or any other professional and produce such Inspection Report before this Court - List the matter on 3rd December, 2021.
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2021 (11) TMI 1045 - SUPREME COURT
Rejection of claim of appellant - rejection on the ground of time limitation - delay of two months - HELD THAT:- Since the appellant was required to file its claim within 3 months from 11.02.2020, and the appellant actually filed claim well before 14th January, 2021, the claim ought not to have been rejected. The order dated 22.03.2020 of this Court was subsisting and in force - In computing the limitation for any application, the period from 22.03.2020 till 14.3.2021 is to be excluded. All litigants whose limitation expired after 22.03.2020 would be entitled to extension of limitation till the 90th day from 15.03.2021. The learned NCLAT also did not notice the orders passed by this Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER].
The learned Adjudicating Authority ought not to have rejected the claim of the appellant. The learned NCLAT erred in dismissing the appeal, without even considering the effect and impact of the orders of this Court in the suo motu writ petition - the appeal is allowed.
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2021 (11) TMI 1044 - SUPREME COURT
Maintenance of status quo with regard to the distribution of funds of the corporate debtor to the financial creditors - Liquidation in process - only aspect relevant in the present case is that the applications pending before the Adjudicating Authority need to be decided without further loss of time - HELD THAT:- The Adjudicating Authority is definitely expected to keep in view the requirement of expeditious proceeding under the Insolvency and Bankruptcy Code, 2016 as also the directions issued by the Appellate Tribunal, even if expressed in soft terms.
In the given set of circumstances, the Appellate Tribunal, while reiterating its request to the Adjudicating Authority to decide the pending IAs at the earliest, ought not to have disposed of the appeal. Rather, the Appellate Tribunal could have kept the appeal pending, while awaiting compliance from the Adjudicating Authority and, if necessary compliance was not yet forthcoming, to withdraw the matter from the National Company Law Tribunal, Chandigarh Bench, Chandigarh and either to dispose of itself or transfer it to some other Bench of the Tribunal for necessary steps.
Appeal disposed off.
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2021 (11) TMI 1043 - ITAT JAIPUR
Late payments towards EPF and ESI u/s 36(1)(va) r.w.s. 2(24)(x) - HELD THAT:- Since the facts involved in the present case are identical to the facts involved in the case of Mohangarh Engineers and Construction Company Vs. DCIT [2021 (8) TMI 563 - ITAT JODHPUR] and in the case of Bikaner Ceramics Private Limited, Bikaner Vs. ADIT, CPC, Bangaluru [2021 (9) TMI 1319 - ITAT JODHPUR] wherein addition deleted as the said deposits were made prior to filing of return of income u/s 139(1) - So respectfully following the aforesaid referred to order, the disallowances sustained by the Ld. CIT(A) are deleted. - Decided in favour of assessee.
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2021 (11) TMI 1042 - SUPREME COURT
Seeking maintenance of status quo - appointment of Commissioner to get the real factual position of the affairs of the company - HELD THAT:- When the matters concerning interlocutory orders passed by the Tribunal are pending in appeal before the Appellate Tribunal and the said Appellate Tribunal has already passed the requisite orders for expeditious proceedings, there is no reason for this Court to entertain these appeals and to examine any of the aspects relating to interim arrangement or relating to the merits of the case.
The interest of justice shall be served by observing that in the facts and circumstances of the case and looking to the subject matter of pending appeals, the NCLAT may assign a reasonable priority to these matters and after completion of the pleadings, take up the matters for final hearing at the earliest.
The present appeals stand disposed of.
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2021 (11) TMI 1041 - ITAT DELHI
Disallowance of delay in deposit of employee's contribution to PF/ESI u/s. 36(1)(va) - payment before the due date of filing of return of income u/s. 139(1) - HELD THAT:- Principle laid down in the case of Vinay Cement Ltd.[2007 (3) TMI 346 - SC ORDER] have passed series of judgment holding the same proposition that prior to the amendment brought in the statute w.e.f. 1-4-2021, no disallowance can be made that the payment to the employee's contribution to PF and ESI paid by the assessee before the due date of filing of return of income u/s. 139(1). Accordingly, we hold that no disallowance can be made in the assessment year prior to Assessment Year 2021-22. In the result, the disallowance confirmed by the Appeal Centre is deleted. - Decided in favour of assessee.
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2021 (11) TMI 1040 - SUPREME COURT
Large-scale illegal mining and transportation of iron ore - illegal encroachment in forest areas for the purpose of illegal mining - Section 23 of the MMDR Act - HELD THAT:- The following conclusion is reached:-
(i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate Under Section 209 Code of Criminal Procedure. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular;
(ii) The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465 Code of Criminal Procedure is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 Code of Criminal Procedure;
(iii) The decision in Gangula Ashok [2000 (1) TMI 975 - SUPREME COURT] was distinguished in Rattiram [2012 (2) TMI 643 - SUPREME COURT] based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) Code of Criminal Procedure. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) Code of Criminal Procedure is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others;
(iv) In the instant case, the cognizance order was challenged by the Appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court Under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated;
(v) It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no 'failure of justice' Under Section 465 Code of Criminal Procedure is proved. This irregularity would thus not vitiate the proceedings in view of Section 465 Code of Criminal Procedure;
(vi) The Special Court has the power to take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible Under Section 220 Code of Criminal Procedure. There is no express provision in the MMDR Act which indicates that Section 220 Code of Criminal Procedure does not apply to proceedings under the MMDR Act;
(vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 Code of Criminal Procedure. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings;
(viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material;
(ix) A combined reading of the notifications dated 29 May 2014 and 21 January 2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar Under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the Respondent has complied with Section 22 Code of Criminal Procedure; and
(x) The question of whether A-1 was in-charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an Accused at this stage.
The appeal is dismissed.
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2021 (11) TMI 1039 - BOMBAY HIGH COURT
SEBI circular applicability - Clarification seeked in directions that the meeting that is to be held should be in deviation from the terms of the Debenture Trust Deed - Scope of submissions on the basis of any later or Supplementary Trust Deed - HELD THAT:- Obviously, the Supplementary Trust Deed will have to be read with the previous three Trust Deeds in a coherent and consistent manner. A mere reference to SEBI circulars will not and cannot override the express terms of any of the Trust Deeds. The 30 day period will commence from today in view of this clarification.
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2021 (11) TMI 1038 - ITAT JAIPUR
Additions in respect of employees contribution towards ESI/PF - assessee’s failure to pay the employee’s contribution of PF/ESI within the prescribed due dates as per Section 36(1)(va) - HELD THAT:- In the instant case, admittedly and undisputedly, the employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) - D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, we find that there are express wordings in the said memorandum which says “these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years”.
In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken in case of Shri Gopalkrishna Aswini Kumar [2021 (10) TMI 952 - ITAT BANGALORE].
Addition by way of adjustment while processing the return of income u/s 143(1) made by the CPC towards the deposit of the employees’s contribution towards ESI and PF though paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. - Assessee appeal allowed.
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2021 (11) TMI 1037 - NATIONAL COMPANY LAW TRIBUNAL AMARAVATI BENCH
Seeking for approval of the Resolution Plan - Section 30(6) and Section 31 of the Insolvency, and Bankruptcy Code, 2016 read with Regulation 39 (4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- In compliance of Regulation 38(1 A) of the CIRP Regulations, it has been set out in the Resolution Plan, that the Plan operates in best interest of all the stakeholders, as the Financial Creditors are being paid the best optimum value attributed to them and employment opportunities will be generated once the full-fledged operations of the Corporate Debtor starts - All the taxes, liabilities or obligations payable to, claims, assessments, counter claims, etc., shall stand irrevocably waived on the Resolution Plan being approved by the Tribunal. The Resolution Plan submitted by the Resolution Applicant is found to be meeting all the requirements of the IBC, 2016 and more importantly Section 30 (2) of the IBC Code and Regulation 38 (1A) and applicable CIRP Regulations. It does not contravene any of the provisions of law. It caters to the interest of all the Stakeholders.
In K. SASHIDHAR VERSUS INDIAN OVERSEAS BANK & OTHERS [2019 (2) TMI 1043 - SUPREME COURT] the Hon'ble Apex Court held that if the CoC had approved the Resolution Plan by requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority (NCLT). On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan as approved by CoC meets the requirements specified in Section 30(2). The Hon'ble Court observed that the role of the NCLT is 'no more and no less'. The Hon'ble Court further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan "as approved" by the requisite percent of voting share of financial creditors.
The instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38(1A) and 39 (4) of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The same needs to be approved - Application allowed.
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