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Showing 181 to 200 of 1740 Records
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2019 (9) TMI 1566
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - assignment of debt - validity of Assignment Agreement - privity of contract - existence of debt and dispute or not - HELD THAT:- A Financial Creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a Corporate Debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I & B Code. Herein this case Annexure 5 is found a legally executed assignment agreement. It is a registered document, stipulating all the terms and conditions. Annexure 5 proves that Financial Creditor is an assignee comes under the purview of section 5(7) of I & B code - The assignment of debt not at all affect the right of the principle borrower/corporate guarantor (Corporate Debtor in this case) and therefore, Corporate Debtor, being evident, does not have any right to object to the assignment of the debt by the lender.
The rest of the allegations that Financial Creditor filed this petition with mala fide intention, that Financial Creditor suppressed material facts are all found not worthy for consideration. In an application of this nature, this Adjudicating Authority is bound firstly to consider as to whether there is existence of default from the records and information utility or based on other evidence furnished by the Financial Creditor. If the Financial Creditor succeeds in proving default of which the claim put forward by the Financial Creditor and satisfy Section 7(5)(a) of the I & B Code, this Adjudicating Authority is bound to admit the application.
Application admitted - moratorium declared.
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2019 (9) TMI 1565
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt - Existence of debt and dispute or not - HELD THAT:- There was no representation from the Respondent, inspite of notices served on it and also paper publication. The respondent was set ex-parte on 18.07.2019, as the service of notice was held sufficient. There was no contest from the respondent with regard to the debt and to the interest claimed thereon. The debt claimed in the petition is an unpaid operational debt, as is clearly evident from the invoices and the notice under section 8 of the Code. The petition filed under Section 9(2) of the Code is complete in all respects. This Authority has thus no hesitation in admitting the petition.
The Company Petition be and he same is admitted, ex parte - Moratorium declared.
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2019 (9) TMI 1564
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make the repayment of its dues - Financial Creditors - application filed by two applicants without having any inter-se agreement in between them - debt due and payable or not - time limitation - HELD THAT:- It is found that duly sealed and signed promissory demand note was executed between the first applicant and respondent on 01.08.2012 for ₹ 35,00,00,000/-, placed at page No. 47 to the application, which clearly envisages that the loan amount along with interest @ 18% per annum shall be paid at the time of maturity by the corporate debtor on 30.09.2017. Copy of similar demand promissory note entered between the second applicant and the corporate debtor for a sum of ₹ 45,00,00,000/- dated 30.07.2012 is placed at page No. 52 to the application - the first and foremost objection raised by the corporate debtor that the application is barred by limitation is not sustainable.
Maintainability of petition - petition is filed jointly without entering into any agreement between the first and second applicants - HELD THAT:- As per Section 7 (1), there is no bar in filing an application either by self or jointly with other. financial creditors. Thus, the second objection raised by the respondent is also not sustainable.
Default in repayment of the financial debt has occurred or not - HELD THAT:- On perusal of record it is found that on one hand the respondent has stated that the amount in question has not become payable and on the other hand respondent denies having taken any loan from the applicant. Record also shows that the respondent has been making continuous efforts to resolve the issue and has written number of letters to the applicants for purchasing time to make part payment.
While going through the documents so filed by the petitioner, it is found that, corporate debtor admitted and acknowledged liability by letters of acknowledgement of debt/balance confirmation letters from time to time in favour of the petitioner - In the instant case, the documents produced by the Financial Creditor clearly establish the ‘debt’ and there is default on the part of the Corporate Debtor in payment of the ‘financial debt’.
The petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted - Petition admitted - moratorium declared.
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2019 (9) TMI 1563
Refund of Special Additional Duty (SAD) - Rejection of refund on the ground that the claim was filed filed after the period of one year - violation of time limitation as prescribed under N/N. 102/2007-Cus., dated 14-9-2007 read with N/N. 93/2008, dated 1-8-2008 - ambiguity in exemption notification - benefit of doubt to be available to assessee or to Revenue - HELD THAT:- The Hon’ble High Court of Delhi in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] framed the question of law only with respect to retrospective application of the amendment but also held that the amending notification must be read down to the extent it imposes a time limit for filing the refund claim. Evidently, if an importer resells the goods and files the refund claim within the period, they will be put to loss as he will be bearing both the burden of SAD and the VAT which he would pay while selling the goods.
The Hon’ble High Court of Bombay in M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] on the other hand held that it is not open for the importer to pick and choose parts of the exemption notification that suits while ignoring those that don’t. The Hon’ble High Court of Bombay also held that Special Additional Duty of Customs is also in the nature of customs duty and it is not a duty on sale of goods. It further held that the importer does not have any vested, let alone absolute right, for refund of the SAD.
There were contrary decisions - the matter was referred to a Five-Judge Constitutional Bench of the Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] - the judgment of the Hon’ble High Court of Bombay in the case of CMS Info System [2017 (1) TMI 786 - BOMBAY HIGH COURT] is consistent with the ratio of Dilip Kumar’s case, which is required to be followed, where it was held that When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue.
The refund application of the importer beyond the time limit has been correctly rejected by the lower authorities - appeal dismissed - decided against appellant.
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2019 (9) TMI 1562
Compounding of offence - violation of Regulation 7(1) and (2) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 - HELD THAT:- As appellants states that the appellants have already deposited a sum of ₹ 1,50,000/- (Rupees one lakh fifty thousand) on 2nd May, 2019 and that the interest amount due till the date of deposit @ 12% p.a. would be deposited within two weeks.
Respondents state if the said amount is so deposited, the respondents would have no objection, in the given facts of the case, to compounding of the offence subject to any penalty which may be imposed under Section 24(2) of the said Act.
In view of the facts set out herein and the age of the directors, despite the earlier reservation expressed by the respondents in the counter affidavit on account of the conduct of the appellants, we are inclined to compound the offence on the aforesaid amount being paid as assured before us by learned counsel for the appellants, subject to the penalty amount of ₹ 2,00,000/- (Rupees two lakhs). This amount should also be deposited with the Securities and Exchange Board of India within the same period of two weeks.
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2019 (9) TMI 1561
Dishonor of Cheque - "security" offered for the discharge of any debt or any liability or not - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The averment in the complaint does indicate that the signed cheques were handed over by the Accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. This is because, handing over of the cheques by way of security per se would not extricate the Accused from the discharge of liability arising from such cheques.
Counsel for the Appellant pointed out that in view of the changed legal position, the complaint must now proceed before the Court at Ahmedabad. Even this contention may be pursued before the High Court in the remanded proceedings, which may be dealt with appropriately.
Appeal disposed off.
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2019 (9) TMI 1560
Validity of the assessment u/s 153A - HELD THAT:- As noticed that the assessee in his written submissions dated 22.08.2016 stated that the search team had confronted the assessee with unauthentic document. In the present case, it is not clear as to whether any au then tic document was confronted to the assessee or not.
AO so mentioned that a reference was made on 27.11.2012 but it is not clear for which purpose the said reference was made . So in the absence of clear facts on record, this issue is also set aside to the file of the Assessing Officer to be adjudicated a fresh, in accordance with law after providing a due and reasonable opportunity of being heard to the assessee”. Since, the verbatim of the order, in the present case is also same, and in the absence of any change in the material facts, we hereby remand the matter back to the file of the AO to adjudicate a fresh, in accordance with law after providing opportunity of being heard to the assessee. Appeals of the assessee are allowed for statistical purpose.
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2019 (9) TMI 1559
Cheating - business of doubling the amount or paying higher interest on the deposit made by complainants - power of Court to attach properties on default - is filing of charge sheet necessary for prosecution of the accused? - HELD THAT:- Section 7 provides for attachment of properties on default of return of deposits & power of special court regarding attachment. In sub-section 1 to 10 of Section 7, this Act provides as to what is the procedure to be followed for attachment of property - This section nowhere speaks that the charge sheet has to be filed by the competent authority, and for this purpose, Section 13 of the Act, 2005, provides that procedure prescribed for the warrant trial in the Code of Criminal Procedure, 1973 (No.2 of 1974) shall be applicable and special court may take cognizance of the offence without being committed the case to it. It is clear from Section 13 of the Act, 2005 that for criminal proceeding, proceeding of warrant trial shall be applicable.
The learned trial Court, in its detailed order, has wrongly interpreted Section 7 of the Act, 2005, which was only for attachment of properties and not for criminal trial - The learned trial Court, only on the basis that the charge sheet has not been filed by the competent authority, straightway discharged the respondents from Section 10 of the Act, 2005 wrongly interpreting the Statute, which cannot have affirmation by this Court and is liable to be set aside.
The revision petitions are allowed.
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2019 (9) TMI 1558
Income from house property - Enhancing the ALV of the let out property - CIT(A) computing the ALV of the School Building @ the rate of 8% of investment and in enhancing the ALV of the let out property and thereby enhancing the income - interest paid on secured loan, utilized for construction of school building in respect of which full rental income as included the computation of taxable income - Whether CIT(A) erred in invoking the provision of section 251(2) and adding to the taxable income being 50% of interest claimed and allowed by the Assessing Officer - HELD THAT:- Both the above issues have been decided in favour of the assessee by in the case of same assessee for the A.Y. 2010-2011 [2018 (6) TMI 1280 - ITAT DELHI] - Decided in favour of assessee.
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2019 (9) TMI 1557
Seizure of goods - alleged irregularities found in the documents accompanying the goods - HELD THAT:- List this matter on 31.10.2019.
In the meantime, subject to deposit of security other than cash or bank guarantee or in the alternative accept an indemnity bond, equal to the value of tax and penalty, if any, to the satisfaction of seizing authority, the goods of the petitioner along with the vehicle may be released forthwith.
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2019 (9) TMI 1556
Seeking cancellation of the process of submission, finalisation and filing of the resolution plan for approval of this Adjudicating Authority - alleged non-disclosure of material facts - the resolution plan was already approved by the Committee of Creditors - terms of the Process Note was already agreed - role of Resolution Professional - Resolution plan is vitiated by misrepresentation and/or mutual mistake of fact - seeking stay on encashment of Bid Bond Guarantee - HELD THAT:- On perusal of the report, regarding the role of the Resolution Professional about the preparation of the Information memorandum, it is clear that Resolution Professional is duty-bound to provide the most updated information about the entity as accurately as is reasonably possible to this range of solution providers.
It is also the duty of the Resolution Professional to prepare the Information Memorandum, in order for the prospective investors to provide solutions to keep the entity as a going concern, the information memorandum must be made available to potential financiers within a reasonable period of time and if the information is not comprehensive, the Resolution Professional must put out the Information Memorandum with a degree of completeness and the information that she is willing to certify. In the report, an example is also given that the part of the Information Memorandum; the Resolution Professional must clearly state the expected shortfall in the coverage of liabilities and assets of the entity presented in the Information Memorandum. The Resolution Professional also must make sure that the information is readily available to whosoever is interested in bidding, a solution for Insolvency Resolution Process - thus, Resolution Professional becomes the manager of the negotiation between the debtors and creditors in accessing the viability of the entity.
The facts, information and material make it clear that Deccan Resolution Plan was based on misleading MM Report 2016 uploaded in VDR, and this has rendered the entire Resolution Plan un-viable, un-feasible and that cannot be successfully implemented. By subsequent event, there remains least possibility of getting the lease of sister concerns land i.e.Clover land,because of initiation of CIRP Process separately against the company Clover itself, for installation of 12500 MT Press , will also makes the Resolution Plan unviable.
The IBC neither confers the power or jurisdiction on the Adjudicating Authority to compel specific performance of a plan by an unwilling resolution applicant. The letter and spirit of the I&B Code mandate the acceptance of only a viable and lawful resolution plan being implemented at the hands of a willing resolution applicant. Absence of these factors renders the Section 31 application liable to be rejected. The I&B Code envisages a scheme whereby the Corporate Debtor is taken over by the successful resolution applicant. This Scheme must contain a provision for its implementation and supervision under Section 30(2)(d) and as required by the proviso to Section 31(1).
In the present case, undisputedly MM Report 2016 which contained,incorrect and unrealistic information, was uploaded on the VDR, which is created as a data centre to facilitate the resolution applicants to carry out their due diligence. The huge discrepancy in the vital and fundamental information such as the production capacity of the Corporate Debtor and financial information would undoubtedly raise questions on the credibility of the resolution plan - The resolution Professional cannot be said to have misrepresented any fact or misled the Resolution Applicant in any way as he has always represented and communicated the facts about the 2016 MM Report and has never represented otherwise. This conduct of Resolution Professional is also not controverted by the applicant. The Resolution Professional provided detailed financial information to all the potential resolution applicants with plant wise profit and loss statements, including specific classification of the revenue during those years into “Manufacturing” and “Trading / Metals” for the period between April 17 to September 17, as was made available to the Resolution Professional.
Invocation of the Bid Bond Guarantee - HELD THAT:- The purpose of the Bid Bond Guarantee is to serve as security for adherence to conditions contained in the Process Note or Letter of Intent and it is invoked to penalise the applicants for their non-compliance. Every time the Bid Bond Guarantee is invoked, it is co-incident with the rejection of the applicant’s financial bid or the resolution plan. Invocation of Bid Bond Guarantee is a penal action as per the terms of the Process Note. The mere saving of the right of the CoC or the Resolution Professional to continue with the applicant’s Financial Bid or the Resolution Plan even after invocation of the Bid Bond Guarantee would not change the purpose of taking Bid Bond Guarantee neither the penal nature of invocation of the guarantee.
The invocation of the Bid Bond Guarantee was on account of non-submission of performance guarantee by the successful Resolution Applicant. The CoC was within its rights to invoke the Bid Bond Guarantee as per the terms of the Process Document, Bid Bond Guarantee and Letter of Intent. However, this can’t be denied that information uploaded on VDR, which was the very basis of submission of the resolution plan was based on misinformation and was based on M. M. Report 2016, which was admittedly prepared for the particular purpose for invitation of investment.
The Resolution Professional and the CoC is directed to invite the fresh offers within a period of 21 days from the date of receipt of this order, and within 2 weeks thereafter, the Committee of Creditors shall take a final call in the matter and the decision of the Committee of Creditors and the offers received to be placed before this Tribunal on the next date of hearing for consideration - Application disposed off.
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2019 (9) TMI 1555
Maintainability of application - initiation of CIRP - Corporate Debtor - existence of dispute or not - It was held by NCLAT that The Appellant having not given any undertaking or made any specific reply and refused to say that they have no such intention, we are of the view that it is always open to the Adjudicating Authority to pass ad-interim order before admitting any application under Sections 7 or 9 or 10 of the ‘I&B Code’ - HELD THAT:- No case is made out to interfere with the impugned order(s) passed by the Tribunal.
The appeal is, accordingly, dismissed.
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2019 (9) TMI 1554
MAT computation u/s 115JB - Substantial question of law - Admitted question regarding addition made in provision for bad and doubtful debts, revenue generated from trial run production and sales tax subsidy in computation of book profit u/s. 115JB - provision for Director's Retirement Benefit - excess expenditure on Voluntary Retirement - expenses on VRS pertaining to earlier years - addition made in respect of expenditure debited to P & L account - HELD THAT:- SLP dismissed.
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2019 (9) TMI 1553
Default in making payment of Excise Duty - bar in making use of the accumulated Cenvat Credit for making payment of Central Excise Duty during default period or not - constitutional validity of Rule 8 (3A) of the Central Excise Rules, 2002 - HELD THAT:- The Jurisdictional High Court at Calcutta, in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] has followed the decision of the Gujarat High Court in INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] and has held the portion of rule 8 (3A) as ultra vires.
Thus, there is no bar in making use of the accumulated Cenvat Credit in making payment of Central Excise Duty even during default period - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1552
SSI Exemption - use of brand name - period of dispute is from 01.03.2011 to 28.02.2013 - N/N. 30/2004-CE dated 09.07.2004 as amended vide Notification No.12/2011-CE dated 01.03.2011 - HELD THAT:- The dispute involved in all the present appeals stands decided by the Hon’ble Supreme Court in the case of M/S. RDB TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, KOLKATA-IV COMMISSIONERATE [2018 (2) TMI 825 - SUPREME COURT]. The Hon’ble Apex Court had examined the wordings of the Notification as it stood during the disputed period and decided that the printing of the name, logo and other particulars of buyer, like, FCI and State Governments, were made by the manufacturers to comply with the requirements of Jute Control Order. The Hon’ble Supreme Court further held that the markings on jute bags were under compulsion of law and meant for identification, monitoring and control by Government Agencies and such markings cannot be considered as brand name.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1551
Levy of penalty - Non-payment of service tax - service tax alongwith interest paid on being pointed out - Intellectual Property Service - HELD THAT:- The appellant assessee has already deposited the entire disputed service tax of ₹ 80,944/- and interest of ₹ 16,605/- on 10.12.2010 and the same has also been appropriated by the adjudicating authority.
It is deemed appropriate to invoke the provision of Section 80 in respect of the penalties imposed - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1550
Maintainability of appeal - requirement to comply with the pre-deposit - petitioner's request to receive H forms was rejected - rejection on the ground that the H forms cannot be received after the assessment order is once passed - HELD THAT:- No tax is quantified under the endorsement. If only an appeal is filed against the assessment order, the petitioner is required to make a pre-deposit of part of the disputed tax. Since no tax is quantified under the endorsement, the insistence of the second respondent to pay 12.5 per cent. of the disputed tax as a condition precedent for entertaining the appeal against endorsement is untenable - this view of the petitioner merits consideration.
The second respondent is directed to entertain the appeal of the petitioner against the endorsement of the first respondent without insisting upon payment of 12.5 per cent. of the disputed tax - Petition allowed.
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2019 (9) TMI 1549
Advance ruling application - Income taxable in India - capital gains on the proposed sale of shares - transfer of shares from a holding company - India-Mauritius Tax Treaty - Applicability of provisions of section 90 - HELD THAT:- Ruling the issues of advancing loan to the holding company with interest at 1 per cent. and waiver of earlier loan while advancing fresh loan, have no relevance while deciding the question before us. Even if the entire sale consideration goes back to the parent holding company it will not dilute the separate legal identity of the applicant. The matter regarding variance in the date of transfer of shares as per contribution agreement and the financial statements has been clarified by the applicant.
Suitable clarification has also been provided in respect of the loan given by the applicant not found reflected in form 10-K accounts of the holding company. The other issues raised by the Revenue are also not found relevant for deciding the question before us. Accordingly, the information regarding manner of utilization of sale proceeds, copy of valuation report of shares of BD Singapore, copy of loan agreement between applicant and BS USA and the source of the loan etc., all become inconsequential and no adverse inference can be drawn if the details of the same are not provided by the applicant.
We find that the investment was made out of the funds emanating from the applicant, the investment was held for a period of over 15 years during which the business operations in India was carried on and which continued even after the exit, there was continuous generation of taxable revenue in India and thus the applicant fulfils the conditions as laid out above. In fact the hon'ble Supreme Court had observed in that case that the funds coming from Mauritius were not originating from that country but from third nations, still the structure as set up cannot be considered to be a set up for tax evasion. The apex court further held that the Revenue cannot deny the benefits of transfer of shares by alleging that the Mauritius company was merely a conduit and the US company was the actual beneficial owner of the shares.
We do not have any adverse finding and we are inclined to accept the plea of the applicant that it was not a benami or set up for tax avoidance as a colourable device and only for treaty shopping, which in any case is not taboo. It is not in dispute that the applicant is a tax resident of Mauritius, possesses a valid tax residency certificate granted by the Mauritius tax authorities and would be covered under the India-Mauritius DTAC
The tax treaty between India and Mauritius was originally signed in 1983 which provided a capital gains tax exemption to a Mauritius resident on transfer of Indian securities. The availability of capital gains tax exemption under the Indo-Mauritius Treaty was challenged in courts which had resulted in the Government issuing Circular No. 789 assuring investors the benefits of capital gains exemption under the treaty and which was upheld by the Supreme Court in the Azadi Bachao Andolan case [2003 (10) TMI 5 - SUPREME COURT]
As per article 13(4) of India-Mauritius DTAC that the capital gains derived by the resident of a Contracting State from the alienation of any property other than those mentioned in paragraphs 1, 2 and 3 of the article shall be taxable only in that State. The shares and securities are not specified in clauses 1, 2 and 3 of the article 13. Therefore, any gain arising on sale of shares is liable to tax only in the State in which the person alienating the shares is resident. In the instant case the applicant is resident of Mauritius and accordingly the capital gain arising on transfer of shares of BD India is liable to tax in Mauritius only. We, therefore, uphold the contention of the applicant that by virtue of article 13.4 of India-Mauritius DTAA, capital gain tax is not liable to be charged in India.
The applicant is not liable to pay capital gains tax in India in respect of the transfer of shares held in BD India to BD Singapore having regard to the provisions of India-Mauritius DTAA.
Question 1 as answered - The capital gains on the sale of shares of Becton Dickinson India Private Limited by the applicant to Becton Dickinson Holdings Pte. Ltd. would not be chargeable to Income-tax in India in the hands of the applicant, having regard to the provisions of article 13 of the India-Mauritius Tax Treaty.
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2019 (9) TMI 1548
Institutionalization of arbitration in India - insertion of sub-section (6-A) to Section 11 of the Amendment Act, 2015 - HELD THAT:- The law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense.
Application disposed off.
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2019 (9) TMI 1547
Liquidation of Corporate Debtor - Section 33(1)(a) of Chapter III of I&B Code, 2016 - HELD THAT:- Since no Resolution Plan is received by this Authority under Sub-section (6) of Section 30 of the I&B Code, 2016, before the expiry of the Corporate Insolvency Resolution Process period of 180 days, the Corporate Debtor has to be ordered for Liquidation.
This Authority hereby orders for liquidation of the Corporate Debtor viz., M/s. Gold King Tex India Private Limited which shall be conducted in the manner as laid down in Chapter III of part II of the 1&B Code, 2016 - Application allowed.
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