Advanced Search Options
Case Laws
Showing 141 to 160 of 1601 Records
-
2022 (3) TMI 1461 - ITAT BANGALORE
Transfer pricing adjustment made in respect of both “Software development Segment” and “ITES Segment” - Comparable selection - HELD THAT:- Larsen & Toubro Infotech Ltd, Persistent Systems Ltd and Tech Mahindra Ltd (seg. - Admittedly, the turnover of above said companies are far higher than that of the assessee company. Further the assessee falls under the category of companies having turnover of less than Rs.200 crores, where as the above said companies are having turnover of more than Rs.200 crores. Accordingly, following the above cited decision of the co-ordinate bench, we direct exclusion of above said three companies.
Negative working capital adjustment - We direct the AO/TPO not to make negative working capital adjustment in the hands of the assessee.
-
2022 (3) TMI 1460 - ITAT DELHI
TP Adjustment - selection of MAM - Resale Price Method (‘RPM’) as the most appropriate method - DRP recording the following held that TNMM is the most appropriate method - HELD THAT:- Each assessment years is independent assessment year and what is applicable in one assessment year cannot be applied to another assessment year unless there is same set of facts and circumstances. It is also to be noted that in the assessment year 2012-13 and 2013-14, the appellant had adopted the aggregation of the transaction pertaining to the receipt of management support services with the purchase of trading of goods. Though the appellant had clearly stated in TP study that RPM is MAM for purchase of trading, however due to aggregation of the international transactions, it adopted TNMM to benchmark purchase of trading of goods. Thus, it is clearly evident that the appellant’s FAR is constant as for as purchase of Trading of Goods is concerned since the inception and there is no departure by the appellant for adoption/selection of RPM as MAM for the purchase for trading of goods.
Therefore, in our considered view, since, there is no transaction of management service in the assessment year under consideration i.e Assessment Year 2017-18 unlike in the other Assessment Years, we hold that in the assessment year under consideration RPM is the MAM and the same has to be applied. Accordingly the said ground urged by the Assessee deserves to be allowed.
Since we have agreed with application of RPM method as MAM to determine the ALP of the international transaction for AY in consideration, we remit all other grounds raised before us to the file of AO/TPO for fresh consideration after giving opportunity to the Assessee.
-
2022 (3) TMI 1459 - ITAT MUMBAI
TP Adjustment - Payment of interest on trade credits - Arms length price of international transaction of payment of interest on trade credits to its AE - ALP determined by ld TPO at Rs Nil - HELD THAT:- We find that the transaction of outstanding payable by the assessee to non- AE is a separate international transaction in terms of provisions of explanation [1] [c] of section 92 B - There are no reasons to hold that above transaction is interlinked with other transactions and therefore should be aggregated - LD TPO holding so found that there is an internal CUP available as for capital-financing assessee is paying interest to AE and not paying any interest to NON AE.
Mostly, Internal CUP would provide highly accurate results. In this case, the difference in credit period is a differentiating factor only for the purposes of purchase transaction. For capital financing , the moment the credit period is over, both the outstanding of AE as well as NON AE stands at Par.
We note that assessee has submitted before the learned CIT (A) that the facts noted by the learned TPO that in past also the assessee has not paid any interest is incorrect.
Submission made before him clearly shows that for Assessment Year 2010-11, the assessee has paid ₹1,92,146/-, for Assessment Year 2011-12 ₹15,02,059/- for Assessment Year 2012-13 ₹29,79,359/- and for Assessment Year 2013-14 ₹27,82,845/-. However, that does not make any difference in benchmarking international transaction of current AY. Benchmarking of Payment of interest on outstanding beyond credit period to AE is also not impacted by the margins earned by the assessee or consideration of working capital adjustment. In view of the above facts, we uphold benchmarking made by Transfer Pricing Officer of the above payment interest at Rs. Nil. Accordingly, the grounds of the appeal assessee are dismissed.
-
2022 (3) TMI 1458 - BOMBAY HIGH COURT
Seeking grant of bail - conspiracy - sham agreement entered into with an intention to defraud and cheat Yes Bank Ltd - Bail Application has been dismissed mainly on the ground that the Applicant is involved in committing economic offence and the fact that he has repaid the outstanding amount, is not sufficient to wipe out the criminal liability - HELD THAT:- In the instant case, the FIR was registered on 12/03/2020. The Applicant has reported to the Investigating Officer as and when called and co-operated throughout in the Investigation. Upon completion of the investigation, charge sheet has been filed on 08/10/2021. The Investigating Officer did not find it necessary to arrest the accused during the course of investigation. Hence, in terms of the clarification given by the Hon’ble Supreme Court, it is not necessary to detain the Applicant in custody pending trial, particularly considering the fact that the trial is not likely to conclude in near future, in view of large pendency of cases.
The Applicant who is facing trial in Special Case No.101233 of 2021 pending on the file of Special Judge (CBI), Greater Bombay, is ordered to be released on bail on furnishing PR bond in the sum of Rs. 2,00,000/- with one or two solvent sureties in the like amount - Application allowed.
-
2022 (3) TMI 1457 - SC ORDER
Seeking grant of bail - petitioner is the master mind and cheated innocent people or not - offence under Sections 406,419, 420, 467, 468, and 471 IPC - HELD THAT:- We are of the considered view that the petitioner is entitled to be released on bail as charges have been framed and there is no likelihood of the trial being completed soon. Also, there is no dispute that the other accused have been released on bail. The apprehension of the prosecution about the petitioner fleeing from justice or making himself scarce during the course of trial, can be taken care of by imposing conditions.
We direct the release of the petitioner on bail subject to the satisfaction of the trial Court. In addition, the petitioner is directed to deposit his passport and report to the Rani Bagh Police Station, Delhi in the 1st week of every month.
SLP disposed off.
-
2022 (3) TMI 1456 - ITAT KOLKATA
Revision u/s 263 by CIT - disallowance of amount u/s 35 and claim debited towards advertisement in the Profit & Loss A/c, as prior period expenses, which deserves to be disallowed - HELD THAT:- As on perusal of the observations and finding/direction given by the Ld. PCIT shows that no examination and verification has been done by the Ld. PCIT before arriving at the consideration of holding assessment order being erroneous in so far as it is prejudicial to the interest of the revenue.
PCIT in the present case has not carried out any enquiry of his own and has merely set aside the assessment to the file of the AO to re-examine the issue of claim of advertisement expenses alleged to be held as prior period expenses. Therefore, it is contrary to the guidelines as mandated in the Hon'ble Delhi High Court decision in the case of ITO v. DG Housing Projects Ltd. [2012 (3) TMI 227 - DELHI HIGH COURT]. Accordingly, the consideration arrived at by the Ld. PCIT invoking provisions of section 263 is not justified and cannot be sustained under the facts and circumstances of the present case.
We find that Ld. PCIT has taken note of the amendment made in section 263 w.e.f. 01.06.2015. This amendment relates to Explanation 2 inserted in section 263 of the Act. The co-ordinate bench has dealt with Explanation 2 as inserted by the Finance Act, 2015 in the case of Narayan Tatu Rane v. Income Tax Officer [2016 (5) TMI 1162 - ITAT MUMBAI] to hold that the said Explanation cannot be said to have overridden the law as interpreted by the Hon'ble Delhi High Court in DG Housing Projects Ltd (supra), according to which the Ld. PCIT has to conduct an enquiry and verification to establish and show that the assessment order is unsustainable in law. Also further held that the intention of the legislature could not have been to enable the Ld. PCIT to find fault with each and every assessment order, without conducting any enquiry or verification in order to establish that the assessment order is not sustainable in law, since such an interpretation will lead to unending litigation and there would not be any point of finality in the legal proceedings. The opinion of the Ld. PCIT referred to in section 263 of the Act has to be understood as legal and judicious opinion and not arbitrary opinion.
On the two issues considered by the Ld. PCIT in the impugned order, no action u/s 263 of the Act is justifiable which cannot be sustained under the facts and circumstances of the present case and judicial precedents dealt herein above. We, therefore, quash the impugned order u/s 263 of the Act and allow the grounds raised by the assessee.
-
2022 (3) TMI 1455 - ITAT BANGALORE
TP Adjustment - MAM - rejection of internal CUP selected by assessee as most appropriate method by the revenue authorities - HELD THAT:- As the submissions advanced are on identical facts that has already been considered by this Tribunal, for preceding assessment years as well as assessment year 2015-16 [2020 (3) TMI 471 - ITAT BANGALORE] respectfully following the above view, we direct the Ld.TPO to replace the TNMM with CUP as most appropriate method
Treatment of AMP expenses pertaining to trading segment as an international transaction and determining the ALP in respect of the same - HELD THAT:- We uphod CPM to be the MAM in computing the ALP of the trading segment. Further, based on the categorical observation by the Ld.TPO regarding the trading segment to be at arm’s length, we direct the Ld.AO/TPO to delete the adjustment proposed, in respect of the AMP expenses as it cannot be treated as international transactions in the present facts of the case.
Disallowance of provision of warranty - allowable revenue expenses u/s 37 - HELD THAT:- As noted that coordinate bench of this Tribunal in assessee’s own case for assessment years 2006-07 [2016 (5) TMI 1524 - ITAT BANGALORE], AY 2007-08, AY 201011 [2017 (3) TMI 1835 - ITAT BANGALORE] upheld that provision for warranty has been created on a scientific basis and hence allowable as expenditure under section 37 under the Act.
Thus in assessee’s own case for preceding and subsequent assessment years relying of the decision of the Hon’ble Supreme Court in the case of Rotork Controls India Pvt.Ltd [2009 (5) TMI 16 - SUPREME COURT] we hold that provision for warranty expenditure is allowable.
Disallowance of provision for leave encashment - AO rejected the submission of assessee and held that provision for leave encashment is being unascertained liability was liable to be disallowed under section 43B - HELD THAT:- We note that coordinate bench of this Tribunal in assessee’s own case for AY 2011-12 has held that leave encashment is not a contingent liability, and that, the same ought not to be disallowed while computing income under normal provisions of the Act.
MAT computation u/s 115JB - warranty and provision for leave encashment as an 'unascertained liability' and added the same to book profits under section 115JB - HELD THAT:- As following the ration laid down by Hon’ble Supreme Court in case of Rotork Control [2009 (5) TMI 16 - SUPREME COURT]. we have held that the provision for warranty cannot be treated as unascertained liability. In respect of provision of leave encashment, this Tribunal in assessee’s own case for AY 2011-12 has observed that provision for leave encashment need not to be added back to book profits for the purpose of determining tax liability u/s 115JB of the Act
Thus no merit in the manner in which the book profits for purposes of section 115JB has been computed.Accordingly we direct the Ld.AO to exclude the two items from the book profits for purpose of computing tax liability under section 115JB of the Act.
Assessee appeal allowed.
-
2022 (3) TMI 1454 - DELHI HIGH COURT
Reopening of assessment u/s 147 - procedure prescribed in the substituted Sections 147 to 151 w.e.f. 01st April, 2021 - scope of mandatory procedure prescribed u/s 148A - relation between Relaxation Act, 2020 and Finance Act, 2021 - enhanced/reduced time limit specified in Section 149 - initiation of reassessment proceedings prior to coming into force of the Finance Act, 2021 - substitution made by the Finance Act, 2021 - onset of Covid-19 pandemic followed by nationwide lockdown in March, 2020 - Relaxation of certain provision of specified Act - HELD THAT:- Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ultra vires the Relaxation Act, 2020 and are therefore bad in law and null and void.
Consequently, the impugned reassessment notices issued under Section 148 of the Income Tax Act, 1961 are quashed and the present writ petitions are allowed. If the law permits the respondents/revenue to take further steps in the matter, they shall be at liberty to do so. If and when such steps are taken and if the petitioners have a grievance, they shall be at liberty to take their remedies in accordance with law.
-
2022 (3) TMI 1453 - SUPREME COURT
Demand of interest - Period during which recovery of license fee under Section 36 of the Act was stayed by the High Court and eventually when the writ petition was dismissed. - The High Court held that the respondent was not liable to pay interest as he was under the protection of the interim order. Given the settled position of law, in our view the High Court has erred in holding that the respondent was not liable to pay interest due to the protection given under the interim order.
HELD THAT:- Imposition of a stay on the operation of an order means that the order which has been stayed would not be operative from the date of passing of the stay order. However, it does not mean that the stayed order is wiped out from the existence, unless it is quashed. Once the proceedings, wherein a stay was granted, are dismissed, any interim order granted earlier merges with the final order. In other words, the interim order comes to an end with the dismissal of the proceedings.
In such a situation, it is the duty of the Court to put the parties in the same position they would have been but for the interim order of the court, unless the order granting interim stay or final order dismissing the proceedings specifies otherwise. On the dismissal of the proceedings or vacation of the interim order, the beneficiary of the interim order shall have to pay interest on the amount withheld or not paid by virtue of the interim order.
Decided in favor of revenue.
-
2022 (3) TMI 1452 - ORISSA HIGH COURT
Demand of differential duty - no final assessment order have been passed (although various dates have been mentioned) by following the principles of natural justice and/or any speaking order so as to have proper adjudication before the Appellate forum - principles of natural justice - HELD THAT:- Issue formal notice for 18th April, 2022.
Till the next date, no coercive steps shall be taken for recovery of the demand of differential duty qua the said 36 bills of entry.
-
2022 (3) TMI 1451 - ITAT MUMBAI
Eligibility of claim of deduction u/s 35(1)(iii) - Claim denied as donation paid by the assessee is an accommodation entry and is not a business claim - AR submitted that the assessee has made donation genuinely and obtained the receipts and the transaction satisfied the conditions required for claiming the exemption/deduction - HELD THAT:- We find the Hon’ble Tribunal in the case of M/s Sopariwala Exports Pvt Ltd [2021 (7) TMI 442 - ITAT MUMBAI] has dealt on the identical facts and granted the relief.
We find the facts of the present case are similar in respect of donation u/sec35(1)(ii) of the Act and we respectfully follow the judicial precedence and set aside the order of the CIT(A) and direct the Assessing officer to delete the addition and allow the ground of appeal in favour of the assessee.
-
2022 (3) TMI 1450 - MADRAS HIGH COURT
Condonation of delay of 884 days in filing necessary application to revoke the succession certificate granted by this Court - HELD THAT:- Though the respondents/petitioners have obtained succession certificate, the applicants, who claim to be the second wife and adopted daughter of the deceased R.Kapanipathi Rao, have come forward with the present application to revoke the said succession certificate - Whether the first applicant and second applicant are the second wife and adopted daughter of the deceased, or not, or whether the first applicant has got any testimony, can be decided not in this application, however, the Court has to see whether the reasons are sufficient to allow the application.
On being satisfied with the averments stated in the affidavit filed in support of the application and also considering the submissions made by the learned counsel on either side, the delay is condoned.
Application allowed.
-
2022 (3) TMI 1449 - SECURITIES APPELLATE TRIBUNAL MUMBAI
Offence under SEBI Act - Mobilisation of the funds - violation of the CIS Regulations - Prohibition of manipulative, fraudulent and unfair trade practices - Violation of the provisions of Section 12(1B) of the SEBI Act read with Regulation 3 of CIS Regulations and Regulation 4(2)(t) of the PFUTP Regulations - Scope of definition of fraud - monetary penalty of Rs.20 crores to be paid jointly and severally by the appellant, the Company and its Directors - HELD THAT:- In the instant case, we have gone through the entire impugned order and we do not find any finding to indicate that the appellant committed a fraud in the mobilisation of the funds. In the absence of any finding of fraud the charge of violating Regulation 4(2)(t) of the PFUTP Regulations cannot be proved. We are satisfied that in the absence of any finding of fraud against the appellant there is no violation of Regulation 4(2)(t) committed by the appellant.
Regulation 4(2)(t) provides illegal mobilisation of funds. The impugned order does not show any iota of evidence that the appellant was involved in the illegal mobilisation of funds after he joined as a Director. Admittedly, the appellant was appointed as a Director in 2010. Majority of the schemes floated by the Company was already launched prior to the appellant’s appointment as a Director. There is no finding by the Adjudicating Officer that such and such scheme was launched during the period when the appellant became a Director nor there is any finding that the appellant was responsible in the mobilisation of the funds under those schemes.
The finding that no evidentiary proof has been filed by the appellant that he is not an officer in default or that he did not attend the board meeting when such scheme was launched is patently erroneous. The burden has wrongly been placed upon the appellant. A charge has been levelled against the appellant, namely, violation of Regulation 4(2)(t). The responsibility to prove the charge is upon the prosecution, namely, upon SEBI. It is for the respondent to prove that the appellant was an officer in default or that he attended the meeting when a scheme was launched. It cannot be presumed that the appellant must have been present in the meeting of the board of directors when the scheme was launched. We are satisfied that in the instant case SEBI has failed to discharge its burden.
In any case, the finding of the Adjudicating Officer that the appellant and other Directors are officers in default is totally misplaced. Under Section 5(g) of the Companies Act, 1956 all Directors can be treated as officers in default only when there is a finding that there was no Managing Director or designated person who was responsible for the mobilisation of the funds. We find that there is no finding that the Company did not have any designated person or Managing Director and, therefore, all Directors would be deemed to be officers in default.
Penalty under Section 15HA can be imposed if a person indulges in fraudulent or unfair trade practices. We have already held that the appellant has not indulged in fraudulent and unfair trade practice and, therefore, no penalty under Section 15HA could be imposed.
In the light of the aforesaid, the impugned order in so far as it relates to the appellant cannot be sustained and is quashed. The appeal is allowed. Attachment orders, if any, on the appellant’s demat account, bank account etc. shall be lifted forthwith. All the misc. applications are also accordingly disposed of. In the circumstances of the case parties shall bear their own costs.
-
2022 (3) TMI 1448 - ITAT MUMBAI
TP Adjustment - adjustment in the arm's length price in respect of the interest charged on the advances by the appellant companies to its AE Virgo Europe SPA - whether LIBOR is to be taken as the basis of interest benchmarking for foreign currency denominated loans or whether Indian PLR will be relevant? - HELD THAT:- In the case of CIT Vs Tata Autocomp Systems Ltd [2015 (4) TMI 681 - BOMBAY HIGH COURT] concluded that ALP in the case of loans advanced to Associate Enterprises would be determined on the basis of rate of interest being charged in the country where the loan is received/consumed.
The stand of the authorities below in replacing the LIBOR with Indian PLR cannot be upheld. It is not even the case of the revenue authorities that the basis points above the LIBOR are inadequate or too low. Accordingly, benchmarking by the assessee cannot be faulted with. We delete the impugned ALP adjustment. The assessee gets the relief accordingly.
Adjustment value of the pledge of shares - HELD THAT:- We find that there is no dispute that the shares are pledged, at the instance of or and for the benefit of, an associated enterprises of the assessee, keeping this in mind, when we look at definition of “ transaction” in section 92F(v), it is clear that “transaction includes an arrangement, understanding or action in concert-(A) whether or not such arrangement, understanding or action in concert is formal or in writing; or (B) whether or not such arrangement, understanding or action is concert is intended to enforced by legal proceedings”. It cannot, therefore, be said that pledging shares for the benefit of an associated enterprises is not a transaction between the associated enterprise. It is akin to a corporate guarantee and is, therefore, required to be benchmarked as such.
What is the rate at which such corporate guarantee is to be benchmarked, and whether a corporate guarantee constitutes international transaction at all? - As relying on case of Siro Clinpharm Pvt. Ltd [2021 (10) TMI 754 - ITAT MUMBAI] we uphold the action of the authorities below in principle but we scale down the ALP adjustment to 0.5% of the correct value of shares and for the actual pledge period. To this extent, the assessee will get relief.
Penalty u/s. 271(1)(c) - Issuance of corporate guarantees did not constitute an international transaction under section 92B, as it had no bearing on the profits, income, losses or assets of the enterprise giving such guarantee. This stream of decisions included decisions as in the cases of Micro Ink Ltd [2015 (12) TMI 143 - ITAT AHMEDABAD], Siro Clinpharm Pvt. Ltd [2016 (5) TMI 633 - ITAT MUMBAI], Bharti Airtel Ltd [2014 (3) TMI 495 - ITAT DELHI] In view of this position, it cannot be said that assessee's explanation that the guarantee given by the pledge of shares did not constitute international transaction was not a reasonable explanation. Accordingly, it was not a fit case for imposition of penalty u/s. 271(1)(c).
-
2022 (3) TMI 1447 - ITAT COCHIN
Revision u/s 263 - deduction u/s 54 - submission that the assessee had constructed two residential houses and if at all what was available is only exemption u/s 263 in respect of one residential house - HELD THAT:- A perusal of the order u/s 263 of the Act clearly shows that even before the Pr. CIT the assessee had brought out the issue as also the decision in the case of Gita Duggal [2013 (3) TMI 101 - DELHI HIGH COURT] but the Pr. CIT has not countered the said decision either but has proceeded in para 7 to say that proper verification has not been done.
In fact the wordings used by the Pr. CIT are “it appears from the records. The words of Section 263 of the Act are “if he considers that any order passed by the AO is erroneous in so far as it is prejudicial to the interest of Revenue”. There is no question of making a prima facie view in the revision order. The error has to be specific. Also the issue raised by the Pr.CIT in the present case being a highly debatable issue the same cannot be considered as an issue which is erroneous or prejudicial to the interest of Revenue. Consequently, as the AO has taken one of the possible views it is not susceptible to the provision of revision under section 263 of the Act. The order passed under Section 263 stands quashed. Appeal filed by the assessee is allowed.
-
2022 (3) TMI 1446 - SUPREME COURT
Payments disbursed by the Liquidator - undertaking has been taken by the Liquidator that the banks would return the money if they are not entitled, in accordance with Regulation 43 of the IBBI (Liquidation Process) Regulations 2016 - HELD THAT:- Both in view of the findings which have been arrived at by the NCLAT, and the assurance which has been given to the Court by the Liquidator, it is not necessary to entertain the Appeal. The Appeal is accordingly dismissed.
-
2022 (3) TMI 1445 - ITAT SURAT
Penalty u/s 271C - LTC/LFC involving enroute foreign travel - HELD THAT:- As in assessee’s own case [2021 (2) TMI 28 - ITAT MUMBAI] estimation of income, in the hands of the employees under the head' income from salaries', by the employer was bonafide and reasonable, the very foundation of impugned demands raised under section 201 r.w.s 192 ceases to hold good in law. We must, therefore, vacate these demands.
Bearing in mind entirety of the case, we cancel the impugned demands under section 201 r.w.s. 192 as unsustainable in law, thus delete the delete the penalty. Decided in favour of assessee.
-
2022 (3) TMI 1444 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Seeking to set aside the e-auction held on September 13,2021 by the liquidator - company already under Liquidation process - section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rule, 2016 - HELD THAT:- Assets as shown in the auction notice are mentioned as Land and Building, Plant & Machinery, Inventory, Stores and spares etc. As is evident from the record this factory is situated at Kolkata. It is admitted position that the liquidator decided to postpone the e-auction from 9th of September, 2021 to 13th of September, 2021 and fixed the submission of EMD and other documents in Calcutta for 11th of September, 2021.
Overview of the assets and properties of CD is contained at Page-56 of the bidding document. The details of document required to be submitted by the bidder start from Page-61. There is a provision for physical verification and the site visit at Page 62 and also there is a provision for conducting due diligence - Inspection for the assets of the company by the intending bidders was fixed on or before 7th of September, 2021 thus thereby giving a time of around 12 days. However, when the liquidator did not get even a single bid on or before the schedule fixed by him in his notice dated 24th of August, 2021, he extended the time by issuing the corrigendum dated 8th of September,2021 thereby extending the date of submission of EMD till 11th of September, 2021 and date of e-auction on 13th of September, 2021.
It is apparent from the facts on record, the time of completion of the liquidation process was till April, 2022 (without extension) and why there was so hurry with the liquidator to extend the time only for three days when he was having not even a single bidder in response to its first notice and at the same time inviting bids afresh without affording anyone the opportunity of conducting physical inspection of the huge and high value assets of the company and conducting due diligence and mentioned in earlier notice inviting bids, per se speaks of failure on the part of Liquidator to conduct the sale in fair and in the manner to get the maximum value of the assets - According to the applicants, reasonable time should have been granted to conduct the site inspection and due diligence when the liquidator was extending the time for want of even a single bidder.
By omitting the opportunity to the Intending Bidders, in corrigendum impugned dated 08-09-2021, to conduct physical inspection and due diligence as provided in initial bid document, it is apparent that the liquidator has not acted rationally, reasonably and failed to conduct the auction in a fair manner - Upon the basis of above-mentioned material irregularities/flaws have no option except to auction set aside the entire process, in pursuance to the e- auction notice dated 27th of August, 2021 followed by the corrigendum dated 8th of September, 2021 and the LOI issued by the liquidator to M/s Snaefell Heights LLP and the auction process impugned is hereby set aside.
Application disposed off.
-
2022 (3) TMI 1443 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH - II
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- From the two Email communications dated 21.09.2021 and 04.10.2021 from the Corporate Debtor to the Operational Creditor, evidently the Corporate Debtor has admitted its liability and a debt of more than Rs. 01 (One) crore towards the Applicant. The same is further admitted by the Ld. Counsel appearing on behalf of the Corporate Debtor during the course of final hearing on 28.03.2022.
In the given facts and circumstances, the Operational Creditor has established the default on the part of Corporate Debtor in payments of the operational debt. The Petition filed under Section 9 fulfills all the requirements of law. Therefore, the petition is admitted in terms of Section 9(5) of the IBC. Accordingly, the CIRP is initiated and moratorium is declared in terms of Section 14 of the Code.
Application allowed.
-
2022 (3) TMI 1442 - HIMACHAL PRADESH HIGH COURT
Dishonor of cheque - insufficient of funds - discharge of a legally enforceable debt or not - rebuttal of statutory presumption - section 118 and 139 of NI Act - HELD THAT:- The Hon’ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT & ORS. [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play.
In the case at hand, complainant Ashok Kumar tendered his evidence by way affidavit, Exhibit CW-1/A and stated that the accused was in need of money, as such, requested him to lend Rs. 2,70,000/- and same was given by the complainant to the accused - True it is that in cross-examination complainant has stated that he gave some money in cash and some through bank but he could not recollect how much money was paid in cash and how much through bank. Complainant stated that there was no witness present, at the time, when he had given money to the accused, but such admission on the part of the complainant is of no benefit to the accused, when issuance of cheque and signatures thereupon of the accused stand duly admitted.
Material adduced on record clearly reveals that the complainant successfully proved on record that accused borrowed Rs. 2.70 Lakh from him and, with a view to discharge his liability, issued cheques Exhibits CW-1/B and CW-1/E, but the same were dishonoured on account of insufficient funds in the bank account of the accused. Since, despite having received legal notice, accused failed to make payment of the cheque amount, complainant rightly instituted proceedings under Section 138 of the Act against him, which subsequently came to be rightly decided in favour of complainant in the totality of evidence led on record by complainant.
This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below - Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power.
The impugned judgments/order of conviction and sentence passed by learned Courts below are upheld - the present revision petition is dismissed.
............
|