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Showing 141 to 160 of 2121 Records
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2019 (2) TMI 1989
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loans availed and also placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore the Application under sub-section (2) of Section 7 is taken as complete, accordingly this Bench hereby admits this Petition.
Petition admitted - moratorium declared.
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2019 (2) TMI 1988
Rectification in the register of shares - section 59 of Companies Act, 2013 read with Sec.241-242 of the Companies Act, 2013 - HELD THAT:- The Respondents are directed to maintain status-quo of shareholding pattern of the Company till further orders.
Further the Respondents are directed to maintain Status-quo regarding alienation or create any encumbrance in relation to the properties of the 1st Respondent Company - Respondents are directed to produce all primary records/documents as mentioned on or before 12.02.2019 with a specific list and file in the Registry for the purpose of verification by the Petitioners as required and prayed.
Put up the matter on 18.02.2019.
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2019 (2) TMI 1987
Seeking direction to accept the claim of the Applicant as submitted - seeking direction to Respondent to consider the Applicant as a financial creditor for the purposes of the resolution plan approved by the committee of creditors and presented to this Tribunal under section 31 of IBC - HELD THAT:- It is pertinent to note that the applicant has duly annexed TDS certificates along with his fresh claim form clearly showing that the Corporate Debtor had paid TDS on the interest amounts paid by it to the Applicant from time to time, as directed by the Hon’ble NCLAT. The Ledger account of the Applicant in the books of the Corporate Debtor clearly shows that the Corporate Debtor has paid an interest amounting to ₹12,16,666/- on the business loan advanced by the Applicant to the Corporate debtor. Hence, the claim of the Applicant is duly corroborated by Corporate debtor’s own books of accounts.
Furthermore, the mere fact that there was no express agreement or understanding as to Financial Debt between the Applicant and the Corporate debtor, does not lead to the conclusion that the loan granted by the Applicant is in the nature of Quasi-Capital. The Respondent expressly admits that the amounts advanced was for the purpose of a future gain. Merely because the erstwhile directors of the Corporate debtor had refunded some amount of the Applicant does not deny the fact that the amount granted was for time value of money and interest has also been duly paid on such amount.
The claim of the applicant fall in the definition of Financial Debt as per section 5(8) of the Code. The Respondent is hereby directed to consider the claim of the Applicant as a Financial Debt and treat him a Financial Creditor for the purposes of further proceedings of CIRP - Application allowed.
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2019 (2) TMI 1986
Revision u/s 263 by CIT - foreign contributions received during the year under consideration - application for charitable purpose out of corpus donation which is in violation of section 11(1)(d) - HELD THAT:- The setting aside of assessment order by ld. CIT(E) with the direction to ld. A.O to reconsider the corpus donation of ₹ 56,81,976 by treating them in violation of sec 11 (1 ) (d), will not result to fulfillment of dual statutory condition of AO's order being "erroneous" and ''prejudicial to the interest of the revenue". For an order to be prejudicial to the interest of revenue, some loss must have occurred to the revenue. Whereas in the present case, if at all, corpus donation is considered as violating the provisions of section 11(1)(d), even then, the said donation remains to be voluntary contribution and in accordance with the provisions of section 12(1) read with section 11(1)(a), are utilized for charitable purpose as the same is evident from the deficit of ₹ 50,08,844 (i.e excess of expenditure over income)
Adjustment of ₹ 56,81,976 with the deficit of ₹ 50,08,844 will result to surplus of ₹ 6,73,132 which is within the 15% stipulated amount allowed for accumulation. Interestingly this computation was made by the ld. A.O in her Pre-Assessment Order dated 14.03.2015 (page no 17 of paper book). Therefore, setting aside the order of A.O and denying the status of corpus donation has not resulted any loss to the revenue. Hence pertinent condition of section 263, of the order being ''prejudicial to the interest of the revenue" has not been fulfilled and therefore makes the order of ld.CIT(E) bad in law.
Provisions of section 11(1)(d) in no way have been violated by the assessee. There has been excess of expenditure over income for the year under consideration and the same has been carried forward to the general fund in the balance sheet accumulated over the years whereas Corpus donations are separately appearing in balance sheet. Therefore, the observations of the ld. CIT that the deficit for the year has been met out of the corpus donation, is not correct as is evident from the final accounts.
The assessee is also entitled to carry forward the deficit for the year and set off the same in the next year(s), in the view of dictum laid down by the Hon’ble Apex Court in as held in the case of CIT (E) Vs. Subros Educational Society [2018 (4) TMI 1622 - SC ORDER] Therefore, when carry forward of deficit is allowed, it implies that the said excess utilization has been spent out from sources other than the voluntary contributions received during the year and should be out of Corpus only - the CIT order passed u/s 263 of the I.T.Act is without jurisdiction and we quash the same.- Decided in favour of assessee.
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2019 (2) TMI 1985
Declarations of undisclosed income - Income Declaration Scheme, 2016 - extension of time for making payment of the third installment sought - HELD THAT:- Issue Notice. Dasti service, in addition, is permitted.
The petitioner is to deposit a sum of ₹ 9,02,476/- (Rupees Nine Lakhs, Two Thousand, Four Hundred and Seventy Six only) with interest at the rate of 12% per annum till date.
The said deposit to be made within a period of one week from today.
List the matter after two weeks.
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2019 (2) TMI 1984
Rectification of mistake u/s 154 - HELD THAT:- As in the said order some inadvertent mistakes had crept in, which were corrected by passing a corrigendum order dated 28.05.2019 - another mistake which was in the order of the Tribunal passed on 12.02.2019 in para 24 of the order wherein the name of the scrip was mentioned as KAFL instead of SRK Industries Ltd.
We find that there is an inadvertent typographical mistake which occurred 6th line wherein it was mentioned as “sale of shares of M/s. KAFL” which should be read as “sale of shares of M/s. SRK Industries Ltd.” We order accordingly. This Corrigendum order forms part of our order pronounced on 12.02.2019.
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2019 (2) TMI 1983
Permission for withdrawal of petition - HELD THAT:- These petitions stand disposed off, as NOT PRESSED. The petitioners shall be at liberty to approach this Court after three months, as according to the learned Spl. P.P., Mr. R.C. Kodekar, further investigation is going on, which is likely to be over by then. This Court has not expressed any opinion on the merits of the matter.
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2019 (2) TMI 1982
Validity of impugned SCN - Time Limitation - period of 60 days has expired - HELD THAT:- Reliance can be placed in the case of WINDSON ELECTRONICS PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA & OTHERS. [2004 (4) TMI 56 - CALCUTTA HIGH COURT] and BK. NOWLAKHA AND OTHERS VERSUS UNION OF INDIA AND OTHERS (AND OTHER WRIT PETITIONS) [1991 (8) TMI 78 - DELHI HIGH COURT].
The impugned order dated 05.10.2018 is hereby quashed - Petition disposed off.
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2019 (2) TMI 1981
Murder - Seeking for modification of condition of taking prior permission of the Court to travel abroad - Section 437 of the Cr.P.C - HELD THAT:- The power granted by the Code under Sec. 437 of the Code to impose certain conditions including restriction on movement while granting bail in non bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution - The criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation rights of the police. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, necessity for his presence for investigation, duration of investigation and such other relevant factors. The court has to decide whether notwithstanding the personal liberty of the accused, interest of justice required that his right of movement should be restricted during the pendency of the case by directing him to surrender his passport.
In the present case as submitted by learned counsel for the petitioner, the petitioner is a frequent visitor to foreign countries as in the past, he had to participated in certain conferences, seminars and to receive the prestigious award on behalf of his mother. The petitioner is stated to be involved in spreading and promoting the education business of Ryan Group. He is to travel abroad for his professional assignments as well as his contribution in various fields of education.
The present petition is allowed and the condition of seeking prior permission before leaving to abroad is modified to the extent that the petitioner now onwards shall not be required to take permission of the Court to travel abroad. However, the petitioner is directed to furnish an undertaking in writing before the Investigating Agency that he will make himself available during course of investigation or trial as and when he is required apart from furnishing the details of his travel abroad to the Investigating Officer including the place where he is likely to stay and the countries he proposes to visit and the date of departure and of return.
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2019 (2) TMI 1980
Seeking permission to compromise - HELD THAT:- After recording the statement of both the parties file a short report along with the statement before this Court.
Parties are directed to report before the Registrar (Judicial) - List the matter after four weeks.
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2019 (2) TMI 1979
Stay of demand inclusive of interest - Whether petitioner has a prima facie good case and also it is having massive financial difficulty.? - HELD THAT:- We deem it appropriate to grant the stay of outstanding demand till the disposal of the appeal or a period of 180 days from the date of this order, whichever is earlier subject to payment of 15% of ₹ 6,38,99,650/- by 15.03.2019. This stay is subject to the condition that the assessee shall file an undertaking before the AO to the effect that it shall not alienate any of its immovable properties till the disposal of the present appeal. With these observations and subject to the above terms and conditions, the stay application of the assessee gets disposed of accordingly.
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2019 (2) TMI 1978
Seeking grant of bail - conspiracy - cheating poor investors - collection of huge deposits from the poor public of rural area alluring of high returns and also to provide them domestic animals like goat, sheep, pig etc. - company was not registered with RBI or SEBI for conducting such type of business/money transaction and investment of public money in their own business - offences punishable under sections 120-B, 420, 409 of the Indian Penal Code and sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 - HELD THAT:- Law is well settled that detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken for grant of bail. The Court has to indicate in the bail order, reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence.
Economic offences are considered grave offences as it affects the economy of the country as a whole and such offences having deep rooted conspiracy and involving huge loss of public fund are to be viewed seriously. Economic offence is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications.
Taking into account the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, the nature and gravity of the accusation, the nature of supporting evidence, the severity of punishment in case of conviction, the manner in which huge amount of money was collected in contravention of the provisions of SEBI Act and CIS Regulations and the innocent poor persons were cheated of their hard earned money on the basis of the false assurance, it would not be proper to release the petitioner on bail.
Bail application dismissed.
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2019 (2) TMI 1977
Disallowance u/s 14A - HELD THAT:- We feel that there is no merit in this argument of ld. DR of revenue that disallowance u/s. 14A cannot be lower than the amount disallowed by the assessee while filing the return of income if as per law, lower disallowance is justified. This argument of ld. DR of revenue is rejected.
We examine the applicability of the Tribunal order cited by ld. AR of assessee having been rendered in the case of ACIT Vs. Vireet Investment (P.) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] - As per which only those investments are to be considered for computing average value of investment which yielded exempt income during the relevant year. Respectfully following this order of Special Bench of the Tribunal, we direct the AO to determine the amount of disallowance to be made u/s. 14A on this basis.
Whether disallowance u/s 14A is to be made in a year in which there is no exempt income? - As per the judgement of Hon’ble Apex Court rendered in the case of Maxopp Investment [2018 (3) TMI 805 - SUPREME COURT] it was held that dominant purpose for which investment into shares is made by assessee may not be relevant as section 14A applies irrespective of whether shares are held to gain control or as stock-in-trade. Hence, in our considered opinion, this judgment is not relevant to decide this aspect that whether disallowance u/s 14A is to be made in a year in which there is no exempt income.
Since, the judgment of Hon’ble Delhi High Court and other High Courts are in favour of the assessee on this aspect that no disallowance u/s 14A is to be made in a year in which there is no exempt income, any adverse order of Tribunal cannot be followed by ignoring the judgment of High Court. Respectfully following the decision of Hon’ble Delhi High Court rendered in the case of Cheminvest Pvt. Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] we decide this issue in favour of the assessee and delete the disallowance made u/s. 14A. - Decided in favour of assessee.
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2019 (2) TMI 1976
TP Adjustment - comparable selection - Suo moto exclusion by assessee - HELD THAT:- Comparable suo moto excluded by CIT (A) being M/s. Microland Limited is restored back in the final list of comparables in view of this fact that it was suo moto excluded by CIT (A) and the assessee is not interested in its exclusion. Accordingly ground no. 2 of revenue's appeal is partly allowed.
Accentia Technologies, Cosmic Global Ltd.,Eclerx Services Ltd. and Infosys BPO Ltd.- Assessee is engaged in Business Process Outsourcing Services - As per order rendered in the case of e4e Business Solutions India (P.) Ltd. Vs. DCIT [2016 (3) TMI 356 - ITAT BANGALORE] we find that these four comparables were excluded from the list of final comparables. Respectfully following this Tribunal order, we hold that there is no infirmity in the order of CIT (A) in respect of this aspect of exclusion of these four comparables from the list of final comparables and hence, on this aspect, we decline to interfere in the order of CIT(A).
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2019 (2) TMI 1975
Rejection of petitioner’s claim for duty credit scrips under the Incremental Export Incentivisation Scheme (IEIS), on an annual basis - interpretation of the Notification no. 43 dated 25.09.2013 - petitioner contends that the benefit is not limited to only ₹1 crore but the incentive above that amount is required to bear greater scrutiny - HELD THAT:- The petitioner has already received the benefit to the extent of ₹1 crore and now claims the benefit for the remaining amount of ₹28.17 crores. In view of the decision in M/s Weldone Exim Pvt. Ltd. [2018 (4) TMI 979 - DELHI HIGH COURT], the petitioner would be entitled to the said amount, subject to the respondents carrying out greater scrutiny.
The order dated 30.01.2018 passed by respondent no.3 (Addl. DGFT), rejecting the petitioner’s appeal is also set aside. The respondents are directed to re-examine the petitioners request for export incentives in terms of the decision of the Division Bench of this Court in M/s Weldone Exim Pvt. Ltd. - Petition allowed by way of remand.
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2019 (2) TMI 1974
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of IBC. This Tribunal is satisfied that a default has occurred and the application under Section 7 is complete. The name of the IRP has been proposed and there are no disciplinary proceedings pending against the proposed Interim Resolution Professional.
Petition admitted - moratorium declared.
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2019 (2) TMI 1973
The High Court of Madras dismissed the writ petitions filed by the petitioner as they sought permission to withdraw them in light of an order by the National Company Law Appellate Tribunal. The connected Miscellaneous Petitions were also dismissed, and no costs were awarded.
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2019 (2) TMI 1972
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Counsel for the Financial Creditor in reply to the submissions made by the Corporate Debtor has submitted that sufficient opportunity has been provided by the Financial Creditor to the Corporate Debtor by way of restructuring vide agreements dated 03.06.2015 and 19.08.2016, but the Corporate Debtor has not been in a position to make compliance with the terms and conditions of the restructuring of the outstanding debt and there is no hope for any progress from the side of the Corporate Debtor in making payments of the outstanding debt, and there is default on the part of the Corporate Debtor.
The submissions made by the Counsel for the Financial Creditor appear to be plausible, as sufficient opportunity has been given to the Corporate Debtor for making payment of the outstanding debt but it failed to do so. Although, some plausible explanations have also been given, by the Counsel for the Corporate Debtor for non-compliance of the agreements, yet the same are not sufficient to reject the Application of the Financial Creditor.
The documentary evidence which is placed on the case file is sufficient in order to ascertain the existence of a default on the part of the Corporate Debtor. The Financial Creditor has fulfilled all the requirements of law including the name proposed for appointment as the IRP for admission of the Application filed under Section 7 of the I&B Code, 2016. Hence, the Application stands admitted - moratorium declared.
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2019 (2) TMI 1971
The High Court of Madras dismissed the writ petitions as withdrawn when the petitioner sought to withdraw them. No costs were awarded, and connected miscellaneous petitions were closed. (Case citation: 2019 (2) TMI 1971 - MADRAS HIGH COURT)
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2019 (2) TMI 1970
Addition on account of sundry creditors and on account of expenses of the creditors - No proof to genuineness of the credit - HELD THAT:- In the present case, the A.O. issued notice u/s 133(6) as well as summons u/s 131 to the below mentioned creditors for verifying the genuineness of the transaction.None of the above creditors have complied with the notice and summons of the A.O. The assessee did not file any confirmation or any other document from these creditors to verify the genuineness of the transactions. The assessee has been given sufficient opportunity to prove his case that he has received genuine credits in the matter.
Assessee despite giving sufficient opportunity did not produce any confirmation or the documentary evidence to prove the genuineness of the credits. One creditor Mr. Jameel Ahmad appeared before A.O. but he has not confirmed the transaction with the assessee. These facts clearly show that assessee failed to adduce any sufficient evidences on record to prove genuineness of the credits in the matter.
Tribunal has also remanded back the matter to the Ld. CIT(A) but despite giving fresh opportunity, the assessee did not do anything in the matter. Even before the Tribunal, the assessee did not make any attempt to adduce any additional evidence with prayer, which would, therefore, show that assessee has no evidence to prove genuineness of these credits. It is well settled Law that burden is upon the assessee to prove the identity of the creditors, their creditworthiness and genuineness of the transaction in the matter - assessee failed to produce any documentary evidence and confirmations from the creditors. Therefore, there is no reason to restore the matter back to the file of Ld. CIT(A) for issuing of fresh summons. No interference is called for in the matter. This ground of appeal of assessee is accordingly dismissed.
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9911796707
