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Showing 141 to 160 of 1500 Records
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2021 (12) TMI 1360 - ITAT DEHRADUN
Taxable income to tax u/s 44BB v/s Section 44DA read with section 9(l)(vii) - services provided by the assessee in respect of core pressure & wellbore studies, post stack inversion studies, data processing & maintenance services etc which are prima facie backend activities in the nature of technical services - Assessee argued as Activities are in the nature of ‘mining or like project’ and thus not in the nature of ‘fees for technical services. The services provided by the appellant, were used in the exploration/exploitation of mineral oils - HELD THAT:- As respectfully relying upon the decision of Hon’ble Supreme Court in the case of ONGC [2015 (7) TMI 91 - SUPREME COURT] it is held that the receipts of the Assessee on account of post-stack inversion study, core pressure and wellbore study, data processing and maintenance services were taxable under section 44 BB of the Act.
Contention of the revenue that the amounts have to be taxable u/s 44DA - We hold that to invoke the provisions of Section 44DA, the revenue has to prove that the receipts are indeed or in the nature of FTS taxable u/s 9(1)(vii).
Reimbursement of equipment lost in hole - revenue or capital receipt - HELD THAT:- As the name signifies lost in hole means destruction and loss of capital assets like drilling equipment which are provided by the assessee to oil exploration and. production companies. Therefore, the revenue received on account of loss of equipment does not form income in the hands of the assessee rather it is a mere reimbursement of the cost of equipment destroyed in the process of oil extraction.
As reliance on the decision of the Hon’ble Uttarakhand High Court in the own case of the assessee [2009 (7) TMI 51 - UTTARAKHAND HIGH COURT] wherein the Hon’ble Court held that the receipts on account of equipment lost in hole being in the nature of capital receipts cannot, be included in the revenues chargeable to lax u/s 44BB - We find considerable cogency in assessee's submission as above. Hence, we hold that the Assessing Officer has erred in including the sum received by the assessee as reimbursements for determining the taxable income of the assessee. - Decided against revenue.
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2021 (12) TMI 1359 - ITAT DELHI
Income accrued In India - amount derived by the Appellant on account of distribution revenue from Turner International India Private Limited (‘TIIPL’) as royalty under Section 9(i)(vi) of the Act and also as per the provisions of India-USA Double Taxation Avoidance Agreement (‘DTAA’) - Permanent Establishment (‘PE’) - HELD THAT:- Issue decided in favour of assessee as relying on own case [2020 (10) TMI 245 - ITAT DELHI]
Non allowance of the credit of taxes deducted at source wrongly withheld on revenue not chargeable to tax in India as per Section 9 of the Act - HELD THAT:- Undisputed fact is that the revenue derived from Apalya Technologies Pvt. Ltd. and Parragon Publishing India Pvt. Ltd. are not taxable in India as per Section 9 of the Act. It is also not in dispute that since the income does not form part of the total income of the assessee the credit of TDS was denied. The credit was also denied in A.Y.2013-14 as mentioned elsewhere. The assessee can claim the credit of TDS in the country in which the related income is offered to tax. We, therefore, do not find any reason to interfere with the findings of the DRP. Ground No.7 is accordingly dismissed.
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2021 (12) TMI 1358 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD
Seeking amendment in final resolution plan - seeking to uncaps the CIRP costs on conditions stated therein - seeking to reduce term of the plan from 180 days to 90 days - HELD THAT:- The CIRP period will come to end on 06.01.2022 and a decision on the resolution plans will have to be taken first by the CoC and, thereafter by this Adjudicating Authority.
The ends of justice will be met if it is directed that the applicant herein to place the affidavits at Page Nos. 290 to 298 alongwith the covering letter addressed to the sole member of the CoC for consideration. Since disturb level playing field is not intended to be disturbed, the other resolution applicants whose plans are also being considered will also be permitted to place any modification in their submitted resolution plan before the CoC for its consideration. Such modifications shall be communicated to the CoC, no later than 48 hours from now.
Application disposed off.
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2021 (12) TMI 1357 - CALCUTTA HIGH COURT
Rectification of mistake - error apparent on the face of record - typographical error - HELD THAT:- In the 2nd last line of the 2nd paragraph of the first page of the order, the expression “the question jurisdiction on each raised by the petitioner before the Arbitral Tribunal” shall stand deleted and be placed with the expression “the petitioner shall participate in arbitration”.
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2021 (12) TMI 1356 - CALCUTTA HIGH COURT
Reference of disputes and differences to Arbitration under five several contracts - reference made by the Facilitation Council, MSME, under Sections 18(2) and 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) - applicability of MSMED Act to the Works Contract - legality of clubbing of five different contracts into one reference for adjudication - HELD THAT:- This Court is of the view that without prejudice to any of the rights and contentions of the writ petitioner, the question jurisdiction on each raised by the petitioner before the Arbitral Tribunal - The Tribunal shall decide on its jurisdiction on inter alia the questions raised by the writ petitioner before entering into other questions.
Petition disposed off.
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2021 (12) TMI 1355 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Seeking approval of the Resolution Plan - section 30(6) read with section 31(1) of the Insolvency and Bankruptcy Code, 2016 and regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The Resolution Plan has been approved with 99.10% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the Resolution Professional and the Resolution Applicant for making the plan effective after approval by this Bench - On perusal of the documents on record, it is satisfying that the Resolution Plan is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
As far as the question of granting time to comply with the statutory obligations or seeking approvals from authorities is concerned, the Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code - In case of non-compliance of this order or withdrawal of Resolution Plan, the payments already made by the Resolution Applicant shall be liable for forfeiture.
The Resolution Plan is approved - application allowed.
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2021 (12) TMI 1354 - ITAT DELHI
Disallowance u/s 40A(2) - payment to related party - Addition made as Ms. Anjali Lall does not possess the required qualification to undertake the job of interior decoration, repair and maintenance and secondly, the payment is unreasonable and excessive - HELD THAT:- Expression “the Assessing Officer is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities” as used in section 40A(2) of the Act makes it abundantly clear that the opinion of the Assessing Officer cannot be formed in vacuum and without any cogent evidence. It is the Assessing Officer who has to establish on record that the payment made to the related party is unreasonable and excessive having regard to the market value of the goods, services or facilities for which payment is made. In the facts of the present case, admittedly, except stating that the related party is not technically qualified to undertake the work and the payment made is unreasonable and excessive, the Assessing Officer has not brought any material on record to demonstrate that the payment made is excessive and unreasonable having regard to the market value of the services for which such payment was made. Thus, the disallowance made under section 40A(2) without being back by cogent evidence and purely on conjectures and surmises, cannot be sustained. Accordingly, we delete the disallowance made - Decided in favour of assessee.
TDS u/s 195 - disallowance u/s 40(a)(i) - failure to withhold tax at source on payment made to various persons/entities outside India towards professional/technical fee - HELD THAT:- Payments made to non-resident attorneys cannot be regarded as FTS under section 9(1)(vii) of the Act. Further, a conjoint reading of section 40(a)(i) and 40(a)(ia) brings out a clear distinction between FTS and fees for professional services. Though, section 40(a)(ia) encompasses, both, FTS and fees for professional services, however, section 40(a)(i) is applicable only in case of failure to deduct tax on payments made for FTS. As rightly submitted by learned counsel for the assessee, this could be for the reason that payment of legal/professional fee to a non-resident does not accrue or arise in India or is not deemed to accrue or arise in India as per section 5 and section 9 of the Act. It is relevant to observe, in the case of NQA Quality Systems Registrar Ltd. Vs. DCIT [2004 (12) TMI 323 - ITAT DELHI-F] the coordinate Bench has held that professional services are a category distinct from technical services.
Thus we hold that the payments made to non-resident attorneys being not in the nature of FTS, there was no obligation on the assessee to deduct tax at source.
Payments made to foreign attorneys are not chargeable to tax under the provisions of the Act, in terms of section 195 of the Act. Therefore, the assessee was not required to withhold tax on the payments made. Accordingly, we delete the disallowance made under section 40(a)(i) of the Act. - Decided in favour of assessee.
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2021 (12) TMI 1353 - MADRAS HIGH COURT
Attachment of Bank Accounts - fraudulent availment of ITC - non-application of mind - Section 83 of CGST Act - HELD THAT:- The order impugned herein, wherein, the learned single Judge while setting aside the order of attachment, has observed that the 'opinion' of the second appellant is far more cryptic revealing total non-application of mind and merely repeating what the first appellant has stated in the request for sanction and accordingly, allowed the writ petition and directed the appellants to complete the process of assessment within a period of six weeks.
This court, without going into the merits of the order impugned herein, finds it appropriate to modify the order passed by the learned single judge, only in respect of the direction issued to the appellants. Accordingly, the order impugned herein is modified to the effect that the appellants are at liberty to issue show cause notice to the first respondent within a period of four weeks from the date of receipt of a copy of this judgement and on receipt of the same, the first respondent shall file their objections and documentary evidence, if any, within a period of two weeks thereafter.
Appeal disposed off.
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2021 (12) TMI 1352 - ITAT PUNE
TP adjustment pertaining to the Manufacturing segment -Treating subsidy received by the assessee as a revenue receipt or capital receipt - operating revenue for determining the ALP of the Manufacturing segment - Manufacturing segment which comprises of Import of raw material, Sale of manufactured goods, Payment of technical license fees/Royalty and Payment of one time technology transfer fees - HELD THAT:- The assessee received subsidy under Package Scheme of Incentives (PSI) given by the Government of Maharashtra which was treated as an item of revenue receipt and at the same time, it was also included in the operating revenues for determining the ALP of the Manufacturing segment. In a note given to its balance sheet.
Primary contention of the assessee is that the subsidy is in the nature of capital receipt and hence, should be excluded - When we apply such a test on the facts and circumstances of the case, it demonstrably emerges that the purpose of subsidy is industrial growth; it is linked with the setting up of industrial units; and the amount of subsidy is linked with the amount of investment made in the eligible unit. Simply because the subsidy has been disbursed in the form of refund of VAT and CST, it will not alter the purpose of granting the subsidy, which is nothing but establishment of new industrial units in less developed areas of the State. The authorities below have been swayed by the fact that the subsidy was granted post commencement and is in the nature of refund of VAT and CST and overlooked the purpose of its granting, which is nothing but momentum in industrial pace in less developed parts of the State. Testing the factual panorama on the touchstone of the ratio laid down by the Hon’ble Supreme Court in the above referred cases, we are of the considered opinion that the subsidy of Rs.89.73 crore is a capital receipt and not chargeable to tax.
It is relevant to mention that we are concerned with the A.Y. 2014-15. The Finance Act, 2015 has inserted clause (xviii) to section 2(24) w.e.f. 01-04-2016 providing that the assistance in the form of subsidy or grant of cash incentives etc., other than the subsidy which has been taken into consideration in determining the actual cost of the asset in terms of Explanation 10 to section 43(1), shall be considered as an item of income chargeable to tax. Since the amended provision of section 2(24)(xviii) is not applicable to the year under consideration, the sequitur is that the subsidy received by the assessee would not form part of its total income. We, therefore, overturn the impugned order and direct to treat the subsidy as an item of capital receipt not chargeable to tax.
In view of the fact that the subsidy has been held to be a capital receipt, obviously, it cannot form part of operating revenue of the Manufacturing segment of the assessee company for the purpose of determining the ALP under the TNMM.
AR contended that in the hue of the amendment to section 2(24) of the Act, the assessee offered the subsidy as a revenue receipt chargeable to tax for the A.Y. 2016-17 and also claimed it as operating revenue for the purpose of the ALP determination, which issue is sub judice before the Tribunal. We desist from commenting on the treatment of subsidy as an item of operating revenue or otherwise because it is not required for the disposal of the present appeal, for which the subsidy has been held to be a non-operating revenue on the ground that it is a capital receipt and does not form part of the total income of the assessee.
To sum up, the subsidy is capital receipt not chargeable to tax and at the same time it will not be included in the operating revenue for determining the ALP of the Manufacturing segment - we hold that the profit margins of the comparables cannot be reduced by the difference in the amount of Custom Duty because there is no evidence of any difference in the Custom Duty rates paid by the assessee as well as the comparables. Respectfully following the precedent, we uphold the impugned order on this score. This ground fails.
Comparable selection - Inclusion of Bharat Earth Movers Limited and JCB India Limited in the list of comparables - TPO included Bharat Earth Movers Limited in the list of comparables despite the assessee’s objections - AR submitted that the comparable was there in the immediately preceding assessment year and the Tribunal has directed to exclude the same from the list of comparables. Relevant discussion has been made in para 7 of the Tribunal order. After considering the relevant material, the Tribunal has directed to exclude Bharat Earth Movers Limited. The ld. DR could not controvert the argument of the assessee. Respectfully following the precedent, we order to exclude this company from the list of comparables. This part of the ground is, therefore, allowed.
Next comparable assailed by the assessee is JCB India Limited, which was included by the TPO in the list of comparables - No relief was allowed by the DRP. The ld. AR fairly submitted that the inclusion of JCB India Limited in the list of comparables was challenged by the assessee for the immediately preceding assessment year as well but the Tribunal has upheld the decision of the authorities below in this regard. We have perused the order passed by the Tribunal on this issue for the immediately preceding assessment year. Relevant discussion has been made in para 8 of the order. After elaborate analysis of the factual and legal position, the Tribunal has finally held that JCB India Limited was rightly included in the list of comparables. Following the same view, we countenance the inclusion of this company in the list of comparables. This part of the ground is, therefore, dismissed.
Transfer pricing adjustment on entity level as against the proportionate adjustment - AR submitted that similar issue was raised in the assessee’s appeal for the immediately preceding assessment year and the Tribunal was pleased to direct the AO/TPO to restrict the transfer pricing adjustment to the extent of international transactions under the Manufacturing segment. The ld. DR also fairly admitted the position. Respectfully following the precedent, we direct the AO/TPO to restrict the transfer pricing adjustment to the extent of international transactions under the Manufacturing segment.
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2021 (12) TMI 1351 - ITAT DELHI
Assessment u/s 153A - Addition u/s 68 - unexplained share capital received from 24 persons - neither the creditworthiness of these creditors nor the genuineness of transactions were established as submitted by the AO in Assessment Order and Remand Report - CIT(A) was convinced that the assessee has successfully discharge the onus cast upon it by provisions of Section 68 of the Act and deleted the addition - HELD THAT:- On these facts ratio laid down by the Hon'ble High Court of Delhi in the case of Kabul Chawla .[2015 (9) TMI 80 - DELHI HIGH COURT] which was followed in the case of Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] squarely apply where.has held that where no incriminating material was unearthed to show that there was violation by the assessee to disclose income/additions made by the Assessing Officer was not justified. - Decided in favour of assessee.
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2021 (12) TMI 1350 - TELANGANA HIGH COURT
Assessment order u/s 143(3) making additions under Section 69-A - petitioner has filed appeal before the CIT-A against addition and said appeal is presently pending for hearing - meanwhile demand notices were issued to the petitioner which were followed by garnishee notices - HELD THAT:- After hearing learned counsel for the parties and on due consideration, we are of the view that it would meet the ends of justice if a direction is issued to the Appellate Authority i.e., respondent No.1 to take up the stay petition of the petitioner dated 05.04.2021 and pass appropriate orders thereon in accordance with law. We are of the further opinion that the said stay petition should be decided within a period of six weeks from the date of receipt of a copy of this order. Till such time, the demand pursuant to assessment order dated 21.12.2019 shall remain stayed.
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2021 (12) TMI 1349 - KERALA HIGH COURT
Late filing fee under section 234E - liability to pay late fee for non filing of any statement of tax deduction at source - scope of provisions of section 200A(1)(e) - HELD THAT:- As brought to our attention the decision in M/s.Sarala Memorial Hospital v. Union of India and Another [2018 (12) TMI 1818 - KERALA HIGH COURT] wherein an identical question arose for consideration. After considering the statutory provisions and the implications of the amendment brought in to the Act, it was held that the amendment would take effect only with effect from 1st June, 2015 and is thus prospective in nature. It is submitted that the aforesaid judgment has become final and is binding upon the authorities.
In view of the above, the demand in Ext.P1 for the period from 2011-12 to the first quarter of 2015-16 is bereft of authority and cannot be legally sustainable.
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2021 (12) TMI 1348 - ITAT AHMEDABAD
Assessment u/s 153A - Undisclosed/Unexplained income - withdrawal shown in the seized documents belonging to the partners in their personal capacity or firm - whether withdrawals in the name of the partners of the firm represents the unaccounted income of the firm? - whether these documents belong to the assessee? - HELD THAT:- We find that the seized document was containing the name of the firm and the partners which was duly dated & signed by all of them along with the witnesses.
Thus, it appears that the firm is the owner of the documents and thus it is safe to infer that the document in question belongs to the assessee as envisaged under section 153C of the Act.
Withdrawal shown in the seized documents represents the amount belonging to the partners in their personal capacity - Onus lies upon the assessee to prove that the transactions shown in the seized paper do not represent the true contents.
On examination of the seized document, we note that it was duly signed and dated not only by all the partners but also by three witnesses. The name of the partnership firm along with partners was appearing. It was discernible from the seized document that there was withdrawal of money from the partnership firm. Generally, the withdrawal from the firm represents the withdrawal of the capital by the partners. This capital can either be in the form of money contributed by the partner or maybe the share of profit/remuneration/interest on the capital of the partner generated from the partnership firm. Likewise, all these transactions should have been duly recorded in the books of accounts of the firm as well as in the individual ledger of the partners maintained by the firm. But, on perusal of the financial statement of the firm and the capital account of the partners, we note that such figures are not appearing herein. The necessary details of the financial statement of the assessee and capital account of the partners. Thus, we find difficult to believe the version of the assessee that the impugned withdrawal represents the settlement of the partners account in their individual capacity.
Addition was not made solely on the basis of the statement recorded in the course of search of Shri Lialchand Patel the father-in-law of Shri Himanshu Patel one of the partner of the firm. Therefore, it is not necessary to provide the opportunity of cross examination to the assessee of statement as discussed above.
As there is nothing brought on record that such amount of transactions were recorded in the books of accounts of the individual partners we find that the assessee has not brought anything on record even in the present proceedings which is the 2nd innings. The assessee cannot escape from its liability in discharging the onus cast upon it under the provisions of law in the garb of the matter sub-judice in the court of law. In view of the above, we are of the opinion that the assessee failed to discharge its onus imposed under the provisions of law by furnishing the necessary documentary evidence. Thus, in such facts and circumstances, we are constrained and have no alternative except to confirm the order of the authorities below. Hence the ground of appeal of the assessee is dismissed.
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2021 (12) TMI 1347 - ITAT ALLAHABAD
Rectification u/s 254 - challenging the validity of selecting the case of the assessee under compulsory scrutiny based on incomplete survey dated 06.01.2021 - AO has initiated the compulsory scrutiny without any prior approval of the competent authority and therefore, the question arises whether the initiation of the compulsory scrutiny by the Assessing Officer is in accordance with the criteria prescribed by the CBDT or not? - HELD THAT:- It is settled proposition of law that the scope and jurisdiction of this Tribunal under section 254(2) is very limited and circumscribed to rectify a mistake apparent from record. Therefore, the Tribunal cannot review its own order in the proceedings under section 254(2). The case law relied upon by the DR on this point are binding and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue.
Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) - DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the AO during the assessment proceedings and therefore cannot be permitted to raise this issue. It is pertinent to note that those decisions are only on the issue of jurisdiction of the AO to assess the assessee and not on the validity of the initiation of compulsory scrutiny. Therefore, even if the AO is having jurisdiction to assess the assessee, he may not have the authority to initiate the compulsory scrutiny if the prescribed criteria for such selection of compulsory scrutiny are not satisfied. Hence the decision relied upon by the learned DR on the jurisdiction of the AO are not relevant for the issue under consideration. As there is an apparent mistake in the impugned order and particularly while deciding the additional issue which goes to the root of the matter then, in the facts and circumstances of the case and in the interest of justice, the impugned order dated 21st October, 2021 of this Tribunal is recalled for deciding the appeal of the assessee afresh. Mis application allowed.
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2021 (12) TMI 1346 - KARNATAKA HIGH COURT
Violation of principles of natural justice - auction of goods under seizure and confiscation - HELD THAT:- Respondent No.2-Appellate Authority has clearly committed grave and serious error of law in coming to the conclusion that an opportunity was not required to be given before passing the impugned orders, to say the least, this approach of respondent No.2 – Appellate Authority is clearly opposed and contrary to the principles of natural justice and the impugned order deserves to be quashed on this ground alone.
The petition is hereby allowed.
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2021 (12) TMI 1345 - DELHI HIGH COURT
Seeking grant of Regular Bail - evasion of tax - interim bail granted earlier, which wee not misutilised - HELD THAT:- Considering the fact that the petitioner has been on interim bail from 21st December, 2020 and there has been no misuse of concession of the interim bail granted to him and the respondent is likely to take more time to file the complaint before the competent Court, the petitioner is directed to be released on regular bail on his furnishing personal bond in the sum of ₹1,00,000/- with two sureties of the like amount subject to the satisfaction of the learned Trial Court / Duty Magistrate concerned; further subject to the conditions that the petitioner will join the investigation as and when directed by the respondent and will not leave the country without prior permission of the learned Trial Court and in case of change of residential address and/ or mobile number of the petitioner, the same will be intimated to the Court concerned by way of an affidavit.
Petition disposed off.
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2021 (12) TMI 1344 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Maintainability of application - Appellant submits that although the parties have settled in the matter, the RP is not cooperating in the matter - HELD THAT:- Issue Notice. Requisite along with process fee, if not filed, be filed within three days. If the Appellant provides e-mail address of the Respondents, let notice be also issued through e-mail.
List on 7th February, 2022.
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2021 (12) TMI 1343 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Seeking permission of the Adjudicating Authority to settle the matter - HELD THAT:- Issue Notice. Notice is accepted by Mr. Gautam Singhal, Advocate on behalf of Respondent No. 1. Ms. Shalya Agarwal, Advocate accepts notice on behalf of Respondent No. 2. No further notice needs to be issued on any of the Respondent.
List the Appeal on 11th January, 2022.
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2021 (12) TMI 1342 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - applicability of doctrine of merger - amicable settlement of the dispute - compounding of offences - Section 147 of NI Act - power to review/recall own order/judgment - HELD THAT:- In Gulab Singh case [2017 (12) TMI 1837 - HIMACHAL PRADESH HIGH COURT], this Court finds that issue which arises in the case at hand stands duly adjudicated by this Court - it was held in the case that doctrine of merger does not apply in the case of dismissal of SLP.
In the case at hand, SLP having been filed by the petitioner/applicant herein came to be dismissed in limini by nonspeaking order and as such, does not result in the merger of impugned order with the order passed by the Hon’ble Supreme Court.
Whether this court after affirming the judgment of conviction and order of sentence recorded by court below can accept the prayer made on behalf of the accused to compound the offence while exercising power under Section 147 of the Act or not? - HELD THAT:- Bare perusal of Section 147 of the Act, reveals that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), every offence punishable under this Act, shall be compoundable. Section 147 of the Act is in the nature of an enabling provision which provides for the compounding of offence prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub section (a) of Section 320 of the Code of Criminal Procedure, which otherwise state that “no offence shall be compounded except as provided by this section”, since section 147 was inserted by way of an amendment to a special law, the same will override the effect of sub section (a) of section 320 of the Code of Criminal procedure.
As per provisions of law judgment/order once singed cannot be altered or reviewed except to correct the clerical or arithmetical error, but expression used in the aforesaid provision of law i.e. “save as otherwise provided by this code or by any other law for the time being in force”, enables this Court to consider the prayer made on behalf of the accused for compounding the offence while exercising power under Section 147 of the Act. As has been observed hereinabove, section 147 empowers court to compound every offence punishable under this Act notwithstanding anything contained in the code of criminal procedure.
Hon’ble Apex Court in Damodar S. Prabhu versus Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] has categorically held that offence punishable under Section 138 of the Act can be compounded even in those cases where accused stands already convicted.
Since accused after dismissal of her SLP in limini has agreed to make the entire payment of compensation awarded by Court below to the complainant and thereafter she has approached this Court in the instant proceedings, praying therein to compound the offence in terms of Section 147 of the Act, there appears to be no impediment in compounding the offence alleged to have been committed under Section 138 of the Act while exercising power under section 147 of the Act - this Court holds that review application filed after dismissal of Special Leave Petition, praying therein for recalling/modification of judgment dated 12.9.2019, passed by this Court in Criminal Revision, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them.
Application disposed off.
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2021 (12) TMI 1341 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Maintainability of application - initiation of CIRP - Principal borrower failed to repay the principal amount along with interest - Financial Creditors - account classified as NPA - existence of debt and dispute or not - HELD THAT:- It is considered fit, to adopt the view taken in State Bank of India vs. Athena Energy Ventures Private Limited, [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] case wherein, it was clearly held that in the matter of guarantee, CIRP can proceed against the Principal Borrower as well as the Guarantor. The Hon'ble NCLAT had held in that matter that the law as laid down by the Hon'ble High Courts for the respective jurisdictions, and law as laid down by Hon'ble Supreme Court for the whole country is binding.
The Hon'ble NCLAT further held that in the matter of Piramal [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], the Bench of this Appellate Tribunal "interpreted" the law. It was held that ordinarily, " we would respect and adopt the interpretation but for the reasons discussed above, we are unable to interpret the law in the manner it was interpreted in the matter of Piramal".
The present petition against the Corporate Debtor herein which is a Guarantor as well, is admitted - the petition is admitted and CIRP in respect of the Guarantor is initiated - moratorium declared.
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