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Showing 161 to 180 of 1472 Records

• 2020 (3) TMI 1312 - SUPREME COURT
  

  Trial of cases relating to 'Dishonor of Cheque and default in payment after a demand notice' - Despite many changes brought through legislative amendments and various decisions of this court mandating speedy trial and disposal of these cases, the Trial Courts are filled with large number of pendency of these cases - pendency of more than 35 lakh, which constitutes more than 15 percent of the total criminal cases pending in the District Courts - HELD THAT:- A plain reading of Chapter XVII of the N.I. Act, 1881 and the judgments of this Court in Indian Bank Association & others v. Union of India and ors., [2014 (5) TMI 750 - SUPREME COURT] and Meters and Instruments Private Limited and anr. v. Kanchan Mehta, [2017 (10) TMI 218 - SUPREME COURT] would show the following mandates with regard to the expeditious trial of cases of this nature.

  One of the major factor, for high pendency is delay in ensuring the presence of the accused before the Court for trial. As per recent study, more than half of the pending cases, i.e. more than 18 lakh cases, are pending due to absence of accused - Taking effect from Section 144 of the Act, Sections 62, 66 and 67 of Cr.P.C. and directions of this Court, the Magistrate may opt for one or many of the methods of service of summons, including service through speed post or the courier services, Police Officer or any other person, e-mail or through a Court having territorial jurisdiction.

  There is a need to evolve a system of service/execution of process issued by the court and ensuring the presence of the accused, with the concerted efforts of all the stakeholders like Complainant, Police and Banks. One step in such direction was taken by this court in the case of Meters and Instruments Private Limited, where it had directed the banks to give the details of e-mail of the accused to the payee/complainant for service through e-mail - Banks, being an important stakeholders in cases of this nature, it is their responsibility to provide requisite details and facilitate an expeditious trial mandated by law. An information sharing mechanism may be developed where the banks share all the requisite details available of the accused, who is the account holder, with the complainant and the police for the purpose of execution of process.

  The High Courts may also consider setting up of exclusive courts to deal with matters relating to Section 138, especially in establishments where the pendency is above a standard figure. Special norms for assessment of the work of exclusive courts may also be formulated giving additional weightage to disposal of case within the time-frame as per legal requirement - the status of directions issued or measures adopted by the High Courts may be assessed and a best suited mechanism in this direction may be considered.

  Let the matter be registered separately as Suo Moto Writ Petition (Criminal) with the caption ‘Expeditious trial of cases under Section 138 of N.I. Act, 1881’.

  Issue notice to the Union of India through Law Secretary, Registrar General of all the High Courts, the Director General of Police of all the States and Union Territories, Member Secretary of the National Legal Services Authority, Reserve Bank of India and Indian Bank Association, Mumbai as the representatives of Banking institutions - List both the matters on 16.04.2020.

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• 2020 (3) TMI 1311 - GUJARAT HIGH COURT
  

  Deduction u/s 80IB(10) denied - profit derived from sale of unutilized FSI not being the element of profits derived from the business activity of development and construction of the housing project relating to the sale of tenements - whether ITAT has erred in law and on facts in upholding the decision of Ld. CIT(A) in allowing the deduction u/s.80IB(10) ignoring the facts that in Pratham Residency, Pratham Vatika and Pratham Vistas, assessee has exploited the project land to the maximum keeping in view the various legal and regulatory impediments and the assessee firm had sufficient reasons for not being able to fully utilize the FSI in project? - whether only the profits which are derived from development and construction of housing units are eligible for benefit u/s.80IB(10) and not the profits which are attributable to the FSI that was sold as such without developing and constructing? - ITAT deleted the addition - HELD THAT:- Both the CIT(A) and the Tribunal have arrived at concurrent findings of fact except the project of 'Pratham Citadel'. After taking into consideration the special grounds and circumstances, the ratio of the decision in the case of Shreenath Infrastructure [2014 (4) TMI 482 - GUJARAT HIGH COURT]was applied for allowing the deduction claimed by the assessee under Section80IB(10) of the Act.

  In respect of the project 'Pratham Citadel', for which, the CIT(A) disallowed the claim of the assessee under Section80IB(10) of the Act, the deduction in respect of utilization of FSI, the Tribunal has restored the matter back to the file of Assessing Officer for deciding afresh for examination and verification of the details to be furnished by the assessee so as to consider whether there is any special reasons for underutilization of FSI as enunciated in the case of Shreenath Infrastructure [2014 (4) TMI 482 - GUJARAT HIGH COURT]

  When both the CIT(A) and the Tribunal have arrived at concurrent findings of fact on the basis of the material and records, none of the questions nos.2(d), (e) and (f) could be termed as substantial question of law. The appeal, therefore, fails and stands dismissed.

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• 2020 (3) TMI 1310 - SUPREME COURT
  

  Interpretation of Statute - Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Land acquisition proceedings - meaning of the expression paid'/tender' in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - non-deposit of compensation in court Under Section 31(2) of the Act of 1894 - word 'or', should be read as conjunctive or disjunctive in Section 24(2) of the Act of 2013? - true effect of the proviso, part of sub-Section (2) or main Section 24 of the Act of 2013 - mode of taking possession under the Land Acquisition Act - period covered by an interim order of a Court concerning land acquisition proceedings, to be excluded for the purpose of applicability of Section 24(2) of the Act of 2013 - revival of barred and stale claims - HELD THAT:- Section 24(2) of the Act of 2013 is a penal provision-to punish the acquiring authority for its lethargy in not taking physical possession nor paying the compensation after making the award five years or more before the commencement of the Act of 2013 in pending proceedings, providing that they would lapse. The expression where an award has been made, then the proceedings shall continue used in Section 24(1)(b) under the provisions of the Act of 1894 means that proceedings were pending in praesenti as on the date of enforcement of the Act of 2013 are not concluded proceedings, and in that context, an exception has been carved out in Section 24(2) - Even if possession has been taken, despite which payment has not been made nor deposited, (for the majority of the land-holdings), then all beneficiaries holding land on the date of notification Under Section 4 of the Act of 1894, are to be paid compensation under the provisions of the Act of 2013. Section 24 of the Act of 2013 frowns upon indolence and stupor of the authorities. The expression "possession of the land has not been taken" or "compensation has not been paid" indicates a failure on the part of the authorities to take the necessary steps for five years or more in a pending proceeding Under Section 24(1)(b). Section 24(2) starts with a non-obstante Clause overriding what is contained in Section 24(1). Thus, Section 24(2) has to be read as an exception to Section 24(1)(b).

  It is apparent from a plain reading of Section 16 (of the Act of 1894) that the land vests in the Government absolutely when possession is taken after the award is passed. Clearly, there can be lapse of proceedings under the Act of 1894 only when possession is not taken. The provisions in Section 11A of the Act of 1894 states that the Collector shall make an award within a period of two years from the date of the publication of the declaration Under Section 6 and if no award is made within two years, the entire proceedings for acquisition of the land shall lapse. The period of two year excludes any period during which interim order granted by the Court was in operation. Once an award is made and possession is taken, by virtue of Section 16, land vests absolutely in the State, free from all encumbrances - Payment of compensation under the Act of 1894 is provided for by Section 31 of the Act, which is to be after passing of the award Under Section 11. The exception, is in case of urgency Under Section 17, is where it has to be tendered before taking possession. Once an award has been passed, the Collector is bound to tender the payment of compensation to the persons interested entitled to it, as found in the award and shall pay it to them unless "prevented" by the contingencies mentioned in Sub-section (2) of Section 31. Section 31(3) contains a non-obstante Clause which authorises the Collector with the sanction of the appropriate Government, in the interest of the majority, by the grant of other lands in exchange, the remission of land revenue on other lands or in such other way as may be equitable.

  The legal fiction of lapsing (Under Section 24(2) of the Act of 2013) cannot be extended to denude title which has already vested in the beneficiaries of the acquisition Corporation/Local Bodies, etc., and who, in turn, have also conveyed title and transferred the land to some other persons after development. In COMMISSIONER OF SALES TAX, UP. VERSUS MODI SUGAR MILLS LTD. [1960 (10) TMI 65 - SUPREME COURT] the Court has held that "A legal fiction must be limited to the purpose for which it has been created and cannot be extended beyond its legitimate field." - This Court is of opinion that Section 24 of the Act of 2013 does not intend to take away vested rights. This is because there is no specific provision taking away or divesting title to the land, which had originally vested with the State, or divesting the title or interest of beneficiaries or third-party transferees of such land which they had lawfully acquired, through sales or transfers. There is a specific provision made for divesting, nor does the Act of 2013 by necessary intendment, imply such a drastic consequence. Divesting cannot be said to have been intended.

  The present case involves placement of colon preceding to the Proviso to Section 24(2) and not Section 24(1), which ends with a full stop, and it makes sense and the true meaning where Parliament has placed it. The proviso is part of Section 24(2). It is not permissible to alter the provision and to read it as a proviso to Section 24(1)(b), mainly when it makes sense where Parliament so placed it. To read the proviso as part of Section 24(1)(b), will create repugnancy which the provisions contained in Section 24(1)(b). The window period of 5 years is provided to complete the acquisition proceedings where the award has been passed, and the provisions of the Act of 1894 shall be applied as if it has not been repealed. Section 24(2) starts with a non-obstante clause; it plainly is notwithstanding Section 24(1), and the proviso to Section 24(2) enlarges the scope of Section 24(2). When the window period has been provided Under Section 24(1)(b), i.e., Section 24(2) and its proviso, higher compensation cannot follow in case of an award which has been passed within 5 years of the enactment of the Act of 2013 otherwise anomalous results shall accrue. In case proviso is read as a part of Section 24(1)(b), it would be repugnant to the consideration of the provision which has been carved out saving acquisition and providing window period of 5 years to complete the acquisition proceedings - There is no question of outright deposit. In such event as the deposit is to be made when the Collector is prevented by the exigencies specified in Section 31(2) from making payment. The deposit is not contemplated directly either in the court or the treasury, as the case may be as provided in Section 31(2), corresponding to Section 77(2) of the Act of 2013.

  The word "paid" used in Section 24(2) does not include within its meaning the word "deposited", which has been used in the proviso to Section 24(2). Section 31 of the Act of 1894, deals with the deposit as envisaged in Section 31(2) on being 'prevented' from making the payment even if the amount has been deposited in the treasury under the Rules framed Under Section 55 or under the Standing Orders, that would carry the interest as envisaged Under Section 34, but acquisition would not lapse on such deposit being made in the treasury. In case amount has been tendered and the landowner has refused to receive it, it cannot be said that the liability arising from non-payment of the amount is that of lapse of acquisition. Interest would follow in such a case also due to non-deposit of the amount. Equally, when the landowner does not accept the amount, but seeks a reference for higher compensation, there can be no question of such individual stating that he was not paid the amount (he was determined to be entitled to by the collector). In such case, the landowner would be entitled to the compensation determined by the Reference court.

  The drawing of Panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits Under Section 24(2) of the Act of 2013.

  The maxim actus curiae neminem gravabit is founded upon the principle due to court proceedings or acts of court, no party should suffer. If any interim orders are made during the pendency of the litigation, they are subject to the final decision in the matter. In case the matter is dismissed as without merit, the interim order is automatically dissolved. In case the matter has been filed without any merit, the maxim is attracted commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. No person ought to have the advantage of his own wrong. In case litigation has been filed frivolously or without any basis, iniquitously in order to delay and by that it is delayed, there is no equity in favour of such a person. Such cases are required to be decided on merits.

  The courts cannot invalidate acquisitions, which stood concluded. No claims in that regard can be entertained and agitated as they have not been revived. There has to be legal certainty where infrastructure has been created or has been developed partially, and investments have been made, especially when land has been acquired long back. It is the duty of the Court to preserve the legal certainty - Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24.

  1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

  2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided Under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

  3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings Under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

  4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition Under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation Under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest Under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition Under Section 4 of the Act of 1894.

  5. In case a person has been tendered the compensation as provided Under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed Under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount Under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed Under Section 24(2) of the Act of 2013.

  6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

  7. The mode of taking possession under the Act of 1894 and as contemplated Under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession Under Section 16 of the Act of 1894, the land vests in State there is no divesting provided Under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse Under Section 24(2).

  8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

  9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

  Let the matters be placed before appropriate Bench for consideration on merits.

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• 2020 (3) TMI 1309 - CESTAT NEW DELHI
  

  Calculation of refund amount - Correctness of formulae applied in calculation of the amount - total turnover considered for calculating the refund amount as per Rule 5 of the Credit Rules, whereas part of it was received in next quarter - HELD THAT:- The total turnover, as defined shall be export turnover of services or ₹ 6,40,71,967/- (plus) the value of all other services during the relevant period or nil (actual figure). Thus, the refundable amount shall be ₹ 6,40,71,967x 70,80,518/6,40,71,967 = Refund amount ₹ 70,80,518/-.

  It is found that the Court has misconceived the formula by taking billing amount of export of services as the amount of total turnover or gross turnover for calculation of refund. Evidently, the formula given is for calculation of proportionate refund, where an assessee has got export turnover in part and domestic turnover in part, which is not the fact in the present case. As the appellant is exporting 100% of their services, accordingly, I hold that the appellant is entitled to refund of ₹ 70,80,518/-, whereas refund of ₹ 52,79,93/- is allowed and disbursed. I direct the Adjudicating Authority to grant the balance refund amount of ₹ 18,00,579/- within 30 days of receipt of copy of this order along with interest as per Rules.

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• 2020 (3) TMI 1308 - ITAT DELHI
  

  Disallowance u/s 14A r.w.r. 8D - HELD THAT:- It is an admitted fact that a similar question in had arisen and was decided in favour of the assessee in assessee's own case for the assessment year 89, 2010-11 and 2011-12 in assessee's own case, as was noticed by the Ld. CIT(A) in the impugned order. Further the facts of this issue are covered by the decision of the Hon'ble Punjab and Haryana High Court in assessee's own case for the assessment year 2006-07 also.

  In the circumstances we are of the considered opinion that the addition made by the assessing officer by invoking section 14A of the Act read with Rule 8D of the Rules cannot be sustained and the Ld. CIT(A) rightly deleted the same. No reasons to interfere with the reasoning given and conclusions reached by the Ld. CIT(A) on this aspect and therefore, the same is appended. Ground No. 1 of Revenue's appeal is, accordingly, dismissed.

  Completing the book profit under section 115 JB on account of provision for gratuity, leave encashment, post-Asst. Year: 2012-13 retirement medical benefits, LTC, baggage allowance etc. - HELD THAT:- As argued before us that the provision towards meeting definite liability to be discharged on a future date in respect of the present employees and the quantification of such liability on the basis of actuarial valuation and basing on the report is ascertained liability and not covered under explanation 1 (c) of second proviso to section 115 JB of the Act is further submitted that this issue has been covered by the addition of the Hon'ble Punjab and Haryana High Court for the Assessment Year 2002-03 in assessee's own case which has been followed consistently both by the Tribunal and the Ld. CIT(A) all through these years.

  There is no dispute that the decision of the Hon'ble Punjab and Haryana High Court for the Assessment Year: 2002-03 [2010 (10) TMI 1022 - ITAT DELHI] in assessee's own case covers this issue and such view of the Hon'ble High Court has consistently been followed by the Tribunal and the Ld. CIT(A). Unless and until there is change of circumstances, is not possible to take a different view on an issue covered by the decision of the Hon'ble High Court and also the Tribunal for earlier years.

  Computing book profits under section 115 JB of the Act on account of amortisation of leasehold land - There is no dispute that the decision of the Hon'ble Punjab and Haryana High Court for the Assessment Year: 2002-03 in assessee's own case covers this issue and such view of the Hon'ble High Court has consistently been followed by the Tribunal and the Ld. CIT(A). Unless and until there is change of circumstances, is not possible to take a different view on an issue covered by the decision of the Hon'ble High Court and also the Tribunal for earlier years.

  Disallowance in computing book profits under section 115 JB of the Act on account of amortisation of leasehold land - Assessing Officer disallowed the same stating that no rate of depreciation was prescribed either in the companies act or in the Income Tax Act, 1961 in respect of land - HELD THAT:- The submissions made before us could not be contradicted by the Revenue and more particularly the fact that this issue has been covered by the addition of the Hon'ble Punjab and Haryana High Court in assessee's own case for the Assessment Year: 2006-07 [2018 (4) TMI 47 - PUNJAB AND HARYANA HIGH COURT] in ITA No. 136/2015 by order dated 28/02/2018. Further it is also not in dispute that a view in consonance with the decision of the Hon'ble High Court has been taken by the Tribunal for the Assessment Years: 2004-05 to 2011-12.

  Eligible for deduction under section 80 IA only from adopted from generation and distribution of power and not from other income - HELD THAT:- CIT(A) followed the decision of the Tribunal and granted relief to the assessee. Assessee further places reliance on the addition of the Hon'ble Delhi High Court in the case of Pr. CIT vs. Bharat Sanchar Nigam [2016 (8) TMI 270 - DELHI HIGH COURT].

  Disallowance of depreciation claimed by the assessee in respect of Teesta-V power station - HELD THAT:- DR submitted that remanding the issue to the file of the learned Assessing Officer to follow the decision of the Hon'ble Noida Medicare Centre limited [2015 (8) TMI 665 - DELHI HIGH COURT] would meet the ends of Justice. Recording the same we set aside the finding of the Ld. CIT(A) on this issue and remit the same to the file of the assessing officer to take a view in the light of the decision of the Hon'ble Apex Court in the case of Noida Medicare Centre limited (supra).

  Addition on account of income tax on perquisite borne by the assessee in respect of accommodation provided to its employees while computing the book profit under section 115 JB - HELD THAT:- Considering the fact that under identical facts and circumstances the Tribunal had taken a view in favour of the Asst. Year: 2012-13 assessee in assessee's own case for the Assessment Year: 2010-11 and 2011-12 while following the decision of the Mumbai Tribunal in the case of Rashtriya Chemicals and Fertilisers limited [2018 (3) TMI 1564 - ITAT MUMBAI] in the absence of any decision to the contrary by any higher forum, we hold the issue in favour of the assessee and direct the deletion of the addition made by the learned Assessing Officer on account of income tax on perquisite borne by the assessee in respect of accommodation provided to its employees while computing the book profit under section 115 JB of the Act.

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• 2020 (3) TMI 1307 - SC ORDER
  

  TPA - international transaction - profit level indicators (PLIs) - HELD THAT:- Special leave petition is dismissed on the ground of low tax effect.

  Pending application(s), if any, stands disposed of.

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• 2020 (3) TMI 1306 - MADRAS HIGH COURT
  

  Re-quantification of penalty imposed under u/s 116 of CA for short landing of goods - It is the contention of the petitioner that the original Authority had wrongly calculated the discharge quantity to arrive at the short landed quantity for the purpose of imposition of penalty under Section 116 of the Customs Act, 1962 - tolerance limit of 1% to .5% was considered - applicability of Indian Carriage of Goods by Sea Act, 1925 - HELD THAT:- Though the provision of the Indian Carriage of Goods by Sea Act, 1925, codifies the Hague Rules, Protocol of Signature, (Brussels, 25 August 1925), it has no application for discharge of imported cargo within India from vessels coming from outside the country - The Hon’ble Supreme Court in East and West Steamship & Co. George v. S.K.R., [1960 (5) TMI 38 - SUPREME COURT], has also noted the Section 2 of the Indian Carriage of Goods by Sea Act, 1925, states that rules set out in the Schedule shall have effect only in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India.

  Thus, the said Act is not relevant for considering whether the person-in-charge of the conveyance can state that the bill of lading quantities are not binding of vessels/conveyance or its master. Therefore, the arguments of the Learned Counsel for the petitioner on this ground cannot be entertained.

  Vessel is permitted to discharge liquid cargo only after a ullage survey is carried out under supervision of the Customs Officer and such survey report is signed not only by the Customs officer, but also by the ship-owner or/and the consignee and its agent - After the discharge of the liquid cargo from the vessel, a fresh survey is to be carried out in presence of the Customs Officer. The discharge completion survey report is to be signed by the Customs officer, ship-owner and the consignee or its agent - The difference in the Bill of Lading Quantity or the ullage Survey Report at the Port of loading with the ullage Survey Report at discharge port is to be treated as short landed quantity for the purpose of Section 116 of the Customs Act, 1962.

  From the reading of the judgment of this Court in CAG Shipping (India) Pvt. Ltd. v. The Government of India and Others, [2016 (9) TMI 619 - MADRAS HIGH COURT] Fluorspar contains moisture to facilitate handling and to reduce dust and therefore presence of high moisture content was recognised. There, the Adjudicating Authority had allowed only 0.5% which is universal accepted principle in Maritime law for all the import cargo. However, considering the nature of the import cargo, there the Court had allowed the tolerance limit at 6.47% according to the parameters published by Mr. Michael Miller, an internationally renowned expert on chemicals who had opined that Acid Grade Fluorspar is shipped routinely in the form of damp Filtercake containing 7% to 10 % moisture.

  The petitioner is directed to remit the penalty re-determined by the 3rd respondent in respect of the following show cause notices within a period of thirty days from the date of receipt of a copy of this order - Petition allowed in part.

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• 2020 (3) TMI 1305 - KERALA HIGH COURT
  

  Grant of Anticipatory Bail - recovery proceedings by the Government of India and Public Sector Undertakings owned or controlled by the Government of India - extension of bail which got expired during lockdown period - HELD THAT:- As regards bail applications of convicts and under-trial prisoners, the High Court, on the administrative side, had taken a decision to hear applications seeking bail/anticipatory bails/suspension of sentence, as the case may be, and posted some of the cases for hearing tomorrow (26.03.2020) - Now, the Hon'ble Supreme Court in Suo Motu Writ Petition [2020 (4) TMI 572 - SC ORDER] has issued directions to the State Governments/Union Territories to constitute a High Powered Committee in respect of bail matters, which has already been done. Hence, this Court deems it fit that those applications need not be taken up for hearing and it is left to the High Powered Committee to decide.

  In the interim order of the Hon'ble Supreme Court, there is no reference to the anticipatory bail applications. On instructions, Shri Ranjith Thampan, learned Additional Advocate General submitted that, in view of the National lock down for 21 days declared by the Hon'ble Prime Minister, and the difficulties expressed by the staff and Law officers attached to the Office of the Advocate General, they may not be able to attend the office or Courts. It is the further submission that it is not possible to get instructions from the officers concerned, and therefore, the learned Additional Advocate General, by letter dated 25.03.2020, has requested the Registrar General, High Court of Kerala that all the proceedings have to be postponed.

  Thus, right of personal liberty guaranteed under Article 21 of the Constitution of India should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable. However, the State is at liberty to take appropriate decision in respect of heinous/serious offences and in rest of the cases, State may act accordingly.

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• 2020 (3) TMI 1304 - CESTAT BANGALORE
  

  100% EOU-EHTP - distribution of credit of input services - HELD THAT:- It is not in dispute that the subject services have been procured by the appellants for use in manufacturing their final products and further, there is no dispute with regard to payment of service tax on the subject input services of which credit has been availed/distributed by the appellant. In so far as the distribution of credit prior to the period when ISD registration was obtained, we find that the issue is no longer res integra inasmuch as the Hon’ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DASHION LTD [2016 (2) TMI 183 - GUJARAT HIGH COURT] has clearly decided the issue in favour of assessee to hold that mere non-obtaining of the registration as ‘ISD’ cannot disentitle the assessee from claiming the credit and the same is purely a procedural lapse which is curable in nature.

  In the instant case, the appellant has obtained ISD registration though belatedly. However, the same cannot be the reason to deny the credit and therefore, by respectfully following the decision of the Hon’ble High Court, we are inclined to allow the credit on the said count. In so far as the invoices addressed to the units other than assessee’s ISD unit, there is no dispute that the subject input services have been received and tax has been duly paid thereon. The assessee’s entitlement of credit and distribution thereof has been decided by the High Courts and the Tribunal in the decisions referred supra wherein it has been held substantial benefit of credit should not be denied on technical and procedural grounds - the credit is otherwise eligible even if the export goods are exempted from payment of duty inasmuch as the intention of the Government is to export the goods and not the taxes. Therefore, there is no reason to deny credit on exempted goods which are exported outside India and hence, we uphold the appellant’s eligibility to avail credit in the instant case.

  Denial of credit on services like catering, C&F services, freight on exported goods, travelling and vehicle maintenance services - HELD THAT:- No restriction was placed in the definition of ‘input services’ as was applicable during the impugned period. The definition appearing under Rule 2(l) of the Credit Rules was very wide covering within its ambit all the services which are used in or in relation to manufacture of final products. No exclusion was provided in the definition to deny the credit on aforesaid services. In so far as catering services, the decisions rendered for the period prior to amendment made in March, 2011 as also relied by the appellant, in the case of THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BHARATH HEAVY ELECTRICALS LTD., THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL [2016 (3) TMI 441 - MADRAS HIGH COURT] and THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BHARATH HEAVY ELECTRICALS LTD., THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL [2016 (3) TMI 441 - MADRAS HIGH COURT], the issue has been decided in favour of the assessee.

  There are no reason to deny credit availed by the appellant in the instant case and hence, we uphold the appellant’s eligibility to avail credit.

  Appeal allowed - decided in favor of appellant.

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• 2020 (3) TMI 1303 - CESTAT AHMEDABAD
  

  Refund of Service Tax paid - Payment to the builder in respect of a property which she has booked but later cancelled - certain discrepancy in the Chartered Accountant Certificate - HELD THAT:- There is a incongruence in the order-in-original and order-in-appeal. While the order-in-original rejects the refund claim as inadmissible, order-in-appeal rejects only on the ground of discrepancy in the Chartered Accountant certificate. It is apparent that the appellant was not confronted with the so-called defects in the CA certificate before rejecting the refund claim. Moreover, it is found that the issue of limitation has not been raised by the Original Adjudicating Authority or the first appellate authority. In these circumstances, it cannot be raised in remand proceedings as well.

  The impugned order is set aside and the matter is remanded to Original Adjudicating Authority for fresh consideration - appeal allowed by way of remand.

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• 2020 (3) TMI 1302 - AUTHORITY FOR ADVANCE RULING, KARNATAKA
  

  Rectification of mistake - Supply or not - statutory contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) as per MMDR Act, 1957 - levy of GST under reverse charge mechanism - HELD THAT:- The authority, in the AAR Order ruled that the contributions made towards DMF & NMET are not separate transactions but are on account of the supply made & are directly linked to the royalty payable; also computed as a fixed percentage of royalty and hence are treated as part of the consideration payable for the Licensing Services for right to use minerals including exploration and evaluation.

  It is clearly evident from the aforesaid AAR Order that the authority has considered all the submissions and issued the proper order. Hence there is no error/apparent mistake on the face of the record, in the said order and hence the instant application is not valid and is liable for rejection, in terms of Section 98(2) of the CGST Act, 2017 - the instant application filed by the applicant for rectification of mistake in the Advance Ruling is dismissed.

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• 2020 (3) TMI 1301 - ITAT AHMEDABAD
  

  Deemed dividend u/s 2(22)(e) - CIT-A deleted the addition - HELD THAT:- AR Fairly agree that the issue in appeal is now covered by Hon’ble jurisdictional High Court’s judgment in the case of CIT Vs Mahavir Inductomelt Pvt Ltd [2017 (8) TMI 123 - GUJARAT HIGH COURT]

  In a case in which an amount is received from a person other than the shareholder, as is the admitted position in this case, the provisions of Section 2(22)(e) cannot indeed be invoked. The CIT(A) was thus justified in granting the impugned relief in respect of the addition under section 2(22)(e). We, therefore, approve the conclusion arrived at by the learned CIT(A) in this regard, and decline to interfere in the matter on that count. - Decided against revenue.

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• 2020 (3) TMI 1300 - KERALA HIGH COURT
  

  Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board? - Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board? - HELD THAT:- From the judgment in ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. [2020 (3) TMI 248 - SUPREME COURT] it is evident that the Apex Court held that the principle laid down by the Apex Court in paragraph 16 of the decision in KM ABDULLA KUNHI AND ABDUL KHADER VERSUS UNION OF INDIA [1991 (1) TMI 244 - SUPREME COURT] virtually to the effect that the appropriate Government should wait till the opinion of the Central Advisory Board is received, has to be understood in the light of the subsequent decision rendered by another Constitution Bench of the Apex Court in KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI. [1995 (4) TMI 283 - SUPREME COURT]. Thus, it is evident that the Apex Court has laid down the law that despite the pendency of the case of the detenu before the Advisory Board, the Detaining Authority receiving a representation is bound to consider that representation independently and to pass orders thereon, within a reasonable time, without waiting for the report of the Advisory Board. Thus, in the light of the decision of the Apex Court in Ankit Ashok Jalan’s case the position is that the Detaining Authority ought not to have waited for the report of the Advisory Board and it ought to have considered Ext.P4 representation independently, within a reasonable time.

  Whether the time taken by the Detaining Authority from 27-11-2019 till 14-1-2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues? - HELD THAT:- Due to complete inaction on the part of the Detaining Authority on the representation received pending consideration of the case of the detenues before the Central Advisory Board, it can only be held that the constitutional rights of the detenues were violated. In such circumstances, it was held that the continued detention of the detenues in terms of the detention order would be illegal, invalid and unconstitutional. The same situation is obtained in this case. In the light of the indisputable facts obtained from the counter affidavits filed in this case, it can be seen that pendency of the case of the detenu before the Advisory Board was the reason for the Detaining Authority to withhold consideration of the representation. Once the Advisory Board’s opinion was obtained the Detaining Authority considered the representation and then rejected it and in between there occurred a delay of more than 60 days in consideration of the representation.

  It is to be noted that in Ankit Ashok Jalan’s case the delay occurred in such consideration was only 47 days. Nonetheless, after laying down the law, as mentioned hereinbefore, the Apex Court allowed the writ petition, held the continued detention of the detenues concerned in terms of the detention orders challenged before the Apex Court, to be illegal, invalid and unconstitutional and thereupon quashed the detention orders.

  The constitutional right of the detenu was violated and therefore, continued detention of the detenu and order of confirmation would be illegal, invalid and unconstitutional - petition allowed.

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• 2020 (3) TMI 1299 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
  

  Transitional Input tax credit - inputs lying in their stock as on 30-6-2017, without having proper documents or not - HELD THAT:- The appellant has submitted copy of 58 VAT-invoices of M/s. TEXMO Industries in respect of ITC of ₹ 90,639/- availed by the appellant along with a certificate dated 17-1-2019 of excise duty paid by the principal manufacturer i.e. M/s. TEXMO Industries, Coimbatore. Whereas, Section 140(3)(iii) of the Act stipulates that the supplier should have in possession of prescribed documents evidencing payment of duty under the existing law (Central Excise Law) in respect of such inputs. I observe that the VAT invoices, submitted by the appellant, do not fulfil the conditions for being a valid document under Rule 9 of the Cenvat Credit Rules, 2004 or Rule 11 of the Central Excise Rules, 2002 (i.e. the existing law).

  The appellant has also paid reliance upon the decision of Hon’ble Gujarat High Court in the case of DOWNTOWN AUTO PVT. LTD. VERSUS UNION OF INDIA [2019 (2) TMI 542 - GUJARAT HIGH COURT] - It is found that the above decision is an interim judgment not a final decision. Hence it will not be justified to use the same as in favor/against of any party.

  The appellant was not in possession of prescribed documents evidencing payment of duty under the existing law for availing input tax credit of ₹ 90,639/-, as required under Section 140(3)(iii) of the Act - Appeal dismissed - decided against appellant.

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• 2020 (3) TMI 1298 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
  

  Detention of goods alongwith conveyance - E-way bill got expired - imposition of IGST Tax and penalty - HELD THAT:- M/s. Herbalife International India Pvt. Ltd., Punjab is engaged in direct selling of its products through its large network of distributors dispatched the goods to the appellant i.e. M/s. Herbalife International India Pvt. Ltd., Rajasthan C/o. Jayem Warehousing Pvt. Ltd., E-734, Nakulpath, Lal Kothi Scheme, Near Vidhansabha and Jyoti Nagar Police Station, Jaipur-302015, the owner of the goods is a dealer under the provisions of CGST and RGST Act, 2017 having principal place of business at Jaipur and procures the finished goods from its branches/warehouses located in various other States on stock transfer basis and subsequently sells the same within the State of Rajasthan.

  Neither the appellant nor the transporter have taken the necessary measures or precautions to ensure extension of validity of the E-way bill or generation of an alternate valid one in terms of Rule 138(10) of Central Goods and Services Tax Rules, 2017 and chose to transport the goods on the old E-way bill which was not a valid document. Therefore, appellant’s contention that the delivery of the impugned goods was delayed on account of shortage of space at the recipient’s warehouse, during which time the E-way bill expired and the e-way bill portal does not allow them raising of multiple e-way bills for same tax invoice is not acceptable - the appellant has taken a plea that the goods were being transferred from the location of the transporter to the recipient’s location which was within the distance of 50 kilometers.

  The appellant could not prove with documentary evidence their stand that the goods were being transferred from the location of the transporter to the recipient’s location which was within the distance of 50 kilometers. Therefore, detention/seizure of goods and vehicle and initiation of penal proceedings cannot be faulted - appeal dismissed - decided against appellant.

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• 2020 (3) TMI 1297 - ITAT AHMEDABAD
  

  Maintainability of appeal on low tax effect - Revenue has pleaded that the assessment was reopened on the basis of the audit objection, and it has been provided in the circular that if the assessment has been reopened on the basis of audit objection, then that appeal against the order of the ld.CIT(A) would be decided on merit instead of dismissing it on tax effect - HELD THAT:- We have confronted the Ld. DR with the CBDT Instruction bearing No.5/2017 dated 23/01/2017. These instructions provide that even if an assessment is being reopened on account of audit objection but the additions are deleted by the CIT(A) on merit, then for the purpose of challenging the order of CIT(A) in further appeal the case would be required to be examined on merit. Simply the appeal would not be filed because the case falls within the exceptional clause of the CBDT Instruction for not filing the appeal where the tax effect by virtue of relief granted by the CIT(A) is less than the monetary limit for filing such appeals. In other words, the Department has to assess the merits of the dispute involved and they will not file further appeal against the order of the CIT(A) or ITAT in a mechanical manner. See ASHOKKUMAR HARIKISHANBHAI BHAVSAR [2020 (1) TMI 1401 - ITAT AHMEDABAD]

  Department has not brought any substantial material on the record pointing out that appeal was filed after evaluation of merit on the issues involved. It sought to recall the order of the Tribunal merely on the basis of audit objection, which is not sufficient for recalling the Tribunal order. Therefore, we do not find any error in the order of the Tribunal. Thus the miscellaneous application is rejected.

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• 2020 (3) TMI 1296 - NATIONAL COMPANY LAW TRIBUNAL — MUMBAI BENCH
  

  Seeking approval of the resolution plan - section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As the corporate debtor is a cash-generating entity, the mandatory operational creditor payments and MMB payments shall be paid in full out of the cashflows of the corporate debtor or if the cashflows are insufficient, through fresh fund infusion into the corporate debtor by way of equity, quasi equity, sub-ordinate debt and/or shareholder debt or a combination thereof from the balance-sheet of the resolution applicant, in priority to any payment to any financial creditor. It is clarified that mandatory operational creditor payments shall be made in accordance with the timelines prescribed by the Code and the MMB payments shall be made by the corporate debtor on the effective date - The applicant states, that the port is a critical national asset and it is absolutely imperative that this resolution plan be allowed in order to protect the interests of all the stakeholders including but not limited to the lenders of the corporate debtor.

  The applicant further states that he has examined the approved resolution plan received from APSEZ. As per the provisions of section 31(1) of the Code, the approved resolution plan is binding on all the stakeholder, employees, members, creditors and guarantors of the corporate debtor - Apart from the above, starting from the National Company Law Tribunal approval date till the effective date, the implementation and the monitoring committee shall be constituted and shall comprise of one nominee each of the resolution professional, the resolution applicant and the approving financial creditors.

  The resolution plan seeks all benefits and incentives, including but not limited to, under all such incentive schemes, subsidy schemes and policies that the corporate debtor is entitled under, and all such benefits shall remain vested in the corporate debtor with effect from the effective date. The aforesaid relief is allowed subject to provisions of the respective schemes and policies - The applicant has certified, as per regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, that the contents of the resolution plan, as approved by the committee of creditors with more than 66 per cent. majority in favour, meets all the requirements of the I and B Code and the Regulations as applicable on the date thereof.

  The resolution applicant has declared that neither the resolution applicant nor any of its related parties have failed to implement or contribute to the failure of implementation of any other resolution plan approved by the Adjudicating Authority at any time in the past - The resolution applicant, on taking control of the corporate debtor, shall ensure compliance under all applicable law for the time being in force.

  The resolution plan has necessary provisions for its effective implementation. The CoC has approved this resolution plan with 99.68 per cent. votes in favour of the resolution plan - the resolution plan is approved with modifications, as mentioned above, which shall be binding on the corporate debtor and its employees, members, creditors, guarantors, resolution applicant and other stakeholders involved in the resolution plan.

  The resolution plan is approved under section 31(1) of the I and B Code - application allowed.

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• 2020 (3) TMI 1295 - CESTAT NEW DELHI
  

  CENVAT Credit - input services or not - general insurance policies like motor insurance, fire insurance, marine insurance and others - re-insurance service from Indian as well as foreign reinsurance companies in respect of these insurance policies also availed - Effect of amendment to the definition of “input service‟ in rule 2(l) w.e.f. April 1, 2012 - Extended period of limitation.

  Whether re-insurance services are used for provision of insurance services and, therefore, would qualify as “input service‟ for the Appellant? - HELD THAT:- An insurer issues insurance policy to insure and assumes the risks arising thereunder. The insurance of such risks assumed by the insurer by another insurer is called re-insurance, which would, therefore, be insurance of insurance. Re-insurance, thus, is an insurance of insurer‟s risks. An insurance policy is issued for a specific term and it is for whole term of the policy that the insurer assumes the risk on the insured subject. This business of the insurer is insured by any insurer called a re-insurer and for this purpose the insurer pays a premium to the re-insurer - both insurance and re-insurance services are covered under the scope of the general insurance service classifiable under section 65(105)(d) of the Finance Act and chargeable to service tax. The Appellant has stated that it has paid service tax on the “output service‟ rendered by it. The re-insurers providing re-insurance services also pay service tax on output re-insurance service rendered by them to the Appellant and charge service tax form the Appellant. It is, therefore, clear that such reinsurance services are used by the insurer for providing output insurance service. Without the use of such re-insurance services, it may not be commercially prudent for any insurance company to assume such high risks under the original insurance policies. It is the assumed risks of the original insurer that are insured under the re-insurance policies. It is, therefore, difficult to hold that reinsurance services are not used by the insurer for providing the “output services‟. It would also not be correct to hold that since reinsurance services are availed after the provision of insurance services, CENVAT credit of service tax paid on re-insurance services cannot be availed. The insurance policy is issued for particular term during which the risks are assumed by the insurer and the re-insurance availed by the insurer is co-terminus with the original risks assumed by the insurer.

  The issue that came up for consideration before the Karnataka High Court in PNB METLIFE INDIA INSURANCE COMPANY LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS [2014 (8) TMI 298 - CESTAT BANGALORE] where the issue was whether an assessee can avail CENVAT credit of service tax paid on reinsurance services by treating the said service as an “input service”. The Karnataka High Court examined whether CENVAT credit availed and utilized by the insurance company on service tax paid for re-insurance service is an “input service” for the “output service” of insurance that the company was providing and held that the process of issuance of the policy by the insurer and subsequent procurement of re-insurance policy from another company, which is a statutory requirement, is an integral part of the entire process and the insurance process does not come to end merely on the issuance of the insurance policy since it continues till the existence of the term of the policy. The High Court noted that since reinsurance has to be taken under section 101A of the Insurance Act, it is a statutory obligation and, therefore, has to be considered as having nexus with the “output service” and, therefore, would be an “input service”, for which CENVAT credit can be availed.

  Whether the amendment to the definition of “input service‟ in rule 2(l) w.e.f. April 1, 2012 would affect the eligibility of the Appellant to CENVAT credit on reinsurance services during the relevant period? - HELD THAT:- It needs to be noted that motor vehicles have been excluded from the definition of “capital goods‟. For this reason, the general insurance services relating to such motor vehicles have also been excluded from the purview of “input service‟. The purpose of this amendment , thus, is to restrict the credit on insurance services availed in respect of motor vehicles to only two class of persons, i.e. (a) manufacturer of a motor vehicle in respect of a motor vehicle manufactured by such person; and (b) an insurance company in respect of a motor vehicle insured or re-insured by such person. This exclusion clause cannot be read to cover reinsurance services, which are not insurance services in respect of a motor vehicle. What is excluded under the said exclusion clause is general insurance services in respect of a motor vehicle. Insurance services received by an owner of motor vehicle for insurance of such vehicle stands excluded from the definition of “input service‟. However, a re-insurance service is not in respect of a motor vehicle, but is in respect of the assumed risks of an original insurer and thus, the aforesaid exclusion clause has no application to qualification of re-insurance services as “input service‟.

  Whether the Appellant is eligible to avail CENVAT credit of re-insurance service provided by pool member companies under the Insurance Pool? - HELD THAT:- Under the pool arrangement, the Appellant deposits the whole premium collected by it in the pool account and based on the prescribed formulae, the GIC determines the amount of re-insurance premium due to each member as against the other members. Thus, in effect, each company pays the re-insurance premium after deducting the amount due from the other member companies. The service tax liability stands discharged on the whole re-insurance premium paid to the other members. It cannot be, therefore, be urged by the Department that the invoices that are issued by the pool member companies are not for any provision of service or without any payment. The re-insurance services are provided by the pool member companies and it is for this reason that the Insurance Pool was formed by IRDA - it cannot be doubted that re-insurance services are rendered by pool member companies to each other and payment of premium takes place with the pooling of the original premium into the pool. The Appellant would, therefore, be eligible to avail the CENVAT credit of service tax paid thereon. The impugned orders denying such CENVAT credit cannot, therefore, cannot be sustained.

  It is not necessary to examine whether the extended period of limitation could have been invoked in the facts and circumstances of the case.

  Appeal allowed - decided in favor of appellant.

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• 2020 (3) TMI 1294 - ITAT CHENNAI
  

  Exemption claim u/s 10(38) - HELD THAT:- Assessee has not been given a fair opportunity to prove the genuineness but the assessment has been made based, primarily, on the evidences collected by the Revenue in the course of the investigation conducted by them on brokers / share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee.

  In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax authorities proper materials which would enable them to come to a conclusion.Thus, the AO must keep in mind that the onus of proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence.

  we deem it fit to remit the issues of exemption claim in this appeal back to the file of the A.O. for readjudication on the lines indicated above. Therefore, the A O shall require the assessee; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual, genuine etc. The assessee shall comply with the A.O’s requirements as per law. The Assessing Officer shall also bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc. as had been held by the Co-ordinate Bench of this Tribunal in the case of Shri Aravind Nandial Khatri Vs. I.T.O [2018 (12) TMI 1652 - ITAT CHENNAI]. Assessee’s appeal is treated as partly allowed for statistical purposes.

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• 2020 (3) TMI 1293 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
  

  Maintainability of application - initiation of CIRP - Corporate Debtor committed default in payment of outstanding debt - it is argued that it was not a case simply of outstanding amount only on account of lease rent but amount of electricity charges, diesel, sewer and water charges were also due - Operational debt or not - existence of debt and dispute or not - HELD THAT:- Admittedly, in the present case, there are dues of electricity, diesel, sewer and water charges which are undisputed by the Corporate Debtor. The quantum of such claim/debt is also more than ₹ 1 Lac. Diesel has been consumed for providing electricity. Electricity charges are to be reimbursed by the Corporate Debtor based upon its consumption. Similarly, water charges are also to be paid. These activities clearly fall in the definition of provisions of Services as defined in Section 5(21) of IBC, 2016 as the definition in Section 5(21) means a claim in respect of the provision of Services - the contention of the Corporate Debtor that since main services cannot be categorized as operational debt, these will also not construe as operational debt, is rejected - further, no such restriction/condition exists in provisions of Section 5(21) of IBC, 2016, hence, for this reason also, we see no merit in this contention of the Corporate Debtor.

  Notice u/s 8 of IBC, 2016 has duly been served and acknowledged. The application is otherwise complete and defect-free - application filed by the Operational Creditor under section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, Web Date Systems Private Limited, is hereby admitted - moratorium declared.

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