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Showing 201 to 220 of 1320 Records
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2020 (9) TMI 1121
Seeking implementation of the order of CESTAT - Right of Revenue to file an appeal in the HC against the order of tribunal - It is the submission of the learned counsel for the petitioner that the mere fact that the respondent is contemplating the filing of an appeal against Ext.P7 order cannot be a reason for not issuing directions for the implementation of Ext.P7 order - HELD THAT:- It is trite that the appellate remedy being a statutorily conferred one, no litigant can be deprived of the statutorily permitted period for availing the appellate remedy, through coercive steps that effectively curtail the said period. Just as an assessee, who suffers an order of assessment cannot be compelled to fast track an appellate remedy through coercive steps initiated against him before the expiry of the statutory period available to him for approaching the appellate authority, the respondent herein cannot be compelled to implement Ext.P7 order when the statutorily granted time for filing an appeal against the said order is not over, and it is their stated case that they are preferring such an appeal against Ext.P7 order before a division bench of this Court. The right of the petitioner to insist on the respondent's complying with Ext.P7 order will arise only in the event of the respondents not filing an appeal within the statutory period provided for the same or if an appeal, when preferred within the said time, is dismissed by the appellate authority.
Assuming that this court directs the respondent to implement Ext.P7 order of the appellate tribunal, before the statutory period for filing an appeal against the said order before the appellate authority is over, and the respondent fails to implement the directions of this court on the contention that it intends to file the statutory appeal within the time granted by the statute, this Court would not view the said conduct of the respondent as contumacious for the purposes of a contempt action at the instance of the petitioner herein - Prudence would dictate, therefore, that this court refrain from issuing peremptory directions at the said stage of the proceedings by following the well settled principles informing the exercise of writ jurisdiction, one of which is that the courts should not issue writs that are futile in nature.
Petition dismissed.
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2020 (9) TMI 1120
Customs Brokers Licensing - Validity of N/N. 41/2018-Cus. (N.T.), dated 14-5-2018 - Examination with respect to screening and selection of candidates from "H" Card to "G" Card - permission to hold "G" Card license - HELD THAT:- It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from "H" to "G". The object of any examination is to ensure that the qualified candidate is promoted to the next post. If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down. In this case, the respondent had no right to conduct any oral examination. It is not provided in the Rules. The Rules stipulate that written examination alone must be conducted.
Except merely stating that only two candidates passed in the oral examination, no other specific details have been given in the counter-affidavit. The counter-affidavit has to be rejected - The conducting of the examination on 30-1-2019 and the Public Notice No. 1 of 2019, wherein both the written examination and the oral examination were stipulated, has to be struck down and accordingly struck down. A direction is issued to the respondent, insofar as the petitioner is concerned, since he has passed the written examination, to appoint him as "G" card licence holder on or before 31-3-2020, if he is otherwise eligible.
Petition allowed.
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2020 (9) TMI 1119
Approval of the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Upon considering the approval accorded by the members and creditors of the petitioner Companies to the proposed Scheme, and the affidavit by the Regional Director, Northern Region, Ministry of Corporate Affairs reply submitted by the Transferee Company and the report of the Official Liquidator and, there appears to be no impediment in sanctioning the present Scheme. Consequently, sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013. The petitioner shall however remain to bound to comply with the statutory requirements in accordance with the law.
The scheme is hereby granted to the scheme under section 230 to 232 of the Companies Act, 2013 - Petition allowed.
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2020 (9) TMI 1118
Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme of Amalgamation appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petitions are made absolute in terms of prayer clauses (a) to (c) of Company Scheme Petition No. 4003 of 2019 and prayer clauses (a) to (c) of Company Scheme Petition No. 3946 of 2019.
The Scheme is sanctioned and Appointed date is fixed as 1st April, 2018.
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2020 (9) TMI 1117
Direction to Appellant Bank to release of the margin money amount - Respondent submits that Performance Bank Guarantee is not included in the definition of ‘security interest’ for the benefit of the beneficiary of such Performance Bank Guarantee - HELD THAT:- Admittedly, ₹ 51,27,591/- was the margin money, while was deposited by the Corporate Debtor to secure Bank Guarantee in favour of M/s Tata Steel Processing & Distribution Limited for an amount of ₹ 4,01,94,954/-. The said Bank Guarantee was invoked during the moratorium period, i.e. on 27th December 2018. Given Section 14(3) of the I&B Code, 2016 invocation of the said guarantee could not be stopped by the Bank.
The ‘Security Interest’ does not include the ‘Performance Bank Guarantee’. The Performance Bank Guarantee is not covered by Section 14 of the Code - It is pertinent to mention that the ‘margin money’ is not a security as has been argued by the Respondent and does not require any registration of charge. Only the assets gave by the Company as securities are required to be registered under Section 77 of the Companies Act, 2013.
In this case, Bank Guarantee was invoked on 27th December 2018 by the beneficiary M/s Tata Steel Processing & Distribution Limited, and the margin money amount was used towards the payment of the Bank Guarantee. Once this margin money was used to honour the bank guarantee, nothing remained with the Bank, and as such, the Respondent Resolution Professional cannot demand that amount - The Resolution Professional/IRP is only entitled to those payments to which the Corporate Debtor is entitled if no orders of Moratorium would have been passed under Section 14 of the Code. The Corporate Debtor had no right to claim the margin money after the invocation of Bank Guarantee.
Appeal allowed in part.
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2020 (9) TMI 1116
Maintainability of application - initiation of CIRP - Corporate Debtor did not clear the dues - existence of dispute or dues - HELD THAT:- The Operational Creditor could not invoke confidence of the Adjudicating Authority for initiating such stringent action as one under Section 9 of Insolvency and Bankruptcy Code, 2016. The Learned Counsel for the Appellant states that the Adjudicating Authority wrongly referred the notice under Section 8 of I & B Code (copy of which is at Page 43 Annexure A/13) to be not in Format.
Clearly, the Addresses do not match and service of Notice under Section 8 on Corporate Debtor cannot be accepted. The Learned Counsel is relying only on the Postal Cash Receipts which are at Page 44 which relate to booking of the document with the Postal Authorities. The Respondent did not appear or did not contest. That would not be material looking to the fact that it is burden on the Operational Creditor to make out a case for admitting an Application under Section 9 when the address of the Section 8 notice does not match with the registered address mentioned in Application under Section 9, it cannot be said that the burden on the Operational Creditor has been discharged - Even if such stand was not taken, we cannot close our eyes to what is obvious from the record. Insolvency and Bankruptcy Code, 2016 Proceedings are serious mattes and we cannot simply admit Application under Section 9 if we are not satisfied with compliance of requirements of law.
We are also not convinced that the Application under Section 9 is required to be admitted - Appeal dismissed.
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2020 (9) TMI 1115
Early hearing of application - Auction - section 60(5) of Insolvency and Bankruptcy Code, 2016 read with Rule 11 of National Company Law Tribunal Rules, 2016 - HELD THAT:- The applicant has paid the entire sale consideration in respect of both the properties in the account of certificate holder banks on 17th September, 2019. The DRT proceedings against CD were initiated by a consortium of Banks who are the members of the CoC in the case in hand. So no doubt keeping the money in their hand after setting aside the sale is not proper and just.
An application of this nature wherein a claim is raised not against the CD or against the properties now held by the CD but is against certificate holder banks who are the members of CoC is not maintainable. It is an inter-se claim in between certificate holder banks who received the consideration and the auction purchaser - there are force in the said submission on the side of the applicant/auction purchaser, especially wherein the lead bank representing the CoC showed its readiness to refund the amount.
The certificate holder of the bank who are members of CoC are directed to keep the money paid by the applicant with accrued interest @ applicable to the Banks, till the date of refund to the applicant preferably with in two weeks from the date of receipt of this order by the bank. If such an order is not issued it would work much hardship, economical loss and injustice to the applicant who had purchased the property higher than the upset price notified by the Banks - application disposed off.
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2020 (9) TMI 1114
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt ad dispute or not - HELD THAT:- The Corporate Debtor, has admitted its liability to repay the debt amount and is willing to pay the same. However, it sought for additional time for clearing the financial dues of the Petitioner - On perusal of the records, there is no doubt that there is an admitted debt and a default as per the agreed terms between the two parties. The Petitioner admits that the present loan was renewed as the Corporate Debtor had been repaying the earlier debts. Thus there is a running account between the two and the Corporate Debtor has given an undertaking that it has made arrangements for paying the debt and only requires some more time to settle the debt.
The Corporate Debtor's plea that it be given some more time to repay the debt needs to be accepted, and the Respondent/Corporate Debtor be directed to settle the debt at the earliest in consultation with the Petitioner/Financial Creditor - Petition disposed off.
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2020 (9) TMI 1113
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is settled position of law that provisions of Code cannot be invoked for recovery of outstanding alleged amount(s) - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum.
Since the Respondent has already drawn six cheques for total amount of ₹ 6,69,362/-(which is total principal amount claimed in the Petition), and undertakes to honor those cheques whenever presented for realization, we are inclined to dispose of the instant Company Petition with directions. The Petitioner cannot claim interest due to circumstances.
Application disposed off.
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2020 (9) TMI 1112
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The debt and default in question are not in dispute and on the other hand, the Corporate Debtor has also accepted the debt, and the Respondent is prima facie found to be insolvent. The instant application is filed strictly in accordance with the extant provisions of the Code, and debt and default established and also suggested a qualified Resolution Professional namely Shri Surender Devasani, with Registration No. IBBI/IPA-001/IP-P00775/2017-2018/11348, who also filed written Consent in Form-2 on 26.08.2019, by inter alia declaring that no disciplinary proceedings pending against him with the Board or the Indian Institute of Insolvency. Therefore, he is provisionally eligible to be appointed as IRP.
Application admitted - moratorium declared.
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2020 (9) TMI 1111
Maintainability of Objections - applicant is representing 1500 home buyers of real estate projects, but whereas RP has categorically mentioned that only 448 home buyers voted against the plan - HELD THAT:- This objector has no locus to raise such objections without following the procedure, hence these objections have been rejected without going into the merits of the objections.
As to the request made by the Counsel, we express our helplessness to consider the plea of the counsel because whenever any proceedings is initiated or any reply is filed, it shall be filed in accordance with the Law. Moreover, Hon'ble Supreme Court of India has also categorically mentioned giving liberty to Wishtown Home Buyers Welfare Society that the said entity is at liberty to pursue the remedy in accordance with the law - The Counsel Mr. Lahot has stated that he would supply the list of the home buyers. However, list has not even been mentioned in these objections, the question of granting any permission to provide list after passing this order will not arise.
Objections rejected.
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2020 (9) TMI 1110
Principles of Natural Justice - the order of Tribunal is assailed primarily on the ground that prima facie case of assessee has neither been examined nor there is any consideration of the financial health of the company and, therefore, the order impugned cannot be sustained - Maintainability of revision - requirement of pre-deposit - HELD THAT:- It is settled that the appellate authority for the purposes of consideration of waiver cum stay application is required to examine the prima-facie case, in addition to the financial condition of the assessee. In the facts and circumstances of the present case, this Court finds that there is no examination of prima-facie case of the assessee either by the Tribunal. Since the order of the Tribunal fails to meet the requirement of law, inasmuch as prima-facie case of the revisionist has not been examined or even referred to, as such, the order of the Tribunal under challenge is not liable to be sustained.
This revision is disposed of with the direction upon the appellate authority to conclude the proceedings in pending appeal within a period of three months from the date of presentation of a copy of this order, provided the revisionist furnishes bank guarantee of 10% amount of tax within four weeks, which shall remain subject to the final determination made in appeal.
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2020 (9) TMI 1109
Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court.
Ms.Dhanamadhri, further agrees that there is complete identity on facts and in law in the matter before me as well as in the matter considered earlier. I thus reiterate the view taken in the above matter.
Petition allowed.
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2020 (9) TMI 1108
Dishonor of Cheque - Time Limitation - decree for money in favour of the respondent was confirmed - HELD THAT:- It is true that the cheques were presented to the Bank for encashment after passage of hardly seven years, since the date of delivery. As per Section 84(2) of the NI Act, the reasonableness of time to be taken for presentation from the date of issue of cheque, shall be determined with due regard to the nature of the instrument, the banking and trade usage and also the facts of each particular case.
In this case, the cheques were postdated to 10.12.2017. They became payable only from the dates endorsed therein. Even though the dates of presentation and dishonour were not specifically pleaded, it is clear from the averments made in the plaint that the cheques were presented within the period of two months since they became payable - thus notwithstanding that the issue of cheques was as early as in 2001, the presentation made in 2007 in accordance with proviso (a) to Section 138 cannot be said to offend Section 84 (2) of NI Act.
Review petition partly allowed.
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2020 (9) TMI 1107
Restoration of Registration Certificate of petitioner - Today, Mr. Harpreet Singh, learned senior standing counsel states that petitioner’s registration has been restored retrospectively w.e.f. 06th November, 2018 in accordance with the Appellate Authority’s order dated 15th June, 2020.
HELD THAT:- The present writ petition is disposed of as satisfied.
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2020 (9) TMI 1106
Refund of unutilized input tax credit - time limitation - constitutional validity of Circular No.125/44/2019-GST dated 18th November 2019 - vires of Section 54 of the CGST Act, 2017 or not - HELD THAT:- Issue Notice.
List on 09th December, 2020 along with W.P.(C) 6486/2020.
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2020 (9) TMI 1105
Non-constitution of GST Tribunal - Submission is that issues of facts and law both can be raised before the Tribunal in view of Sections 112 and 113 of the Act - HELD THAT:- The seized goods shall be released to the petitioner upon payment of specified tax along with 100 % penalty under Section 129(1)(a) of the Act. For the remaining amount, the petitioner shall furnish security other than cash and bank guarantee. Such payment shall remain subject to the final determination to be made in this matter.
Learned State counsel shall also apprise the Court as to by what date the GST Tribunal would be constituted - List in the regular cause list after its publication resumes.
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2020 (9) TMI 1104
Classification of services - GTA Services or not (SAC 996791) - sub-contractor - Appellant would be issuing the consignment note to M/s. Posco ISDC Pvt. Ltd.in addition to the consignment note, issued by M/s. Posco ISDC Pvt. Ltd. to their clients - GST under forward charge mechanism - N/N. 0/2017-Central Tax (Rate), dated 22.08.2017 - input tax credit - Procedurally, is it correct to have two GTA Service Providers and two consignment notes for the same movement of goods, one issued by the Appellant as a sub-contractor and the other by M/s. Posco ISDC Pvt. Ltd. as the main contractor? - challenge to AAR decision.
HELD THAT:- On perusal of the aforementioned meaning of the GTA, it is clearly seen that issuance of the consignment note is an essential condition for any person to act as GTA - On perusal of the CGST Act, 2017, it is revealed that the term consignment note is not defined anywhere in the CGST Act, 2017. However, the mention of the same was made under the explanation to Rule 4B of the Service Tax Rules, 1994.
In the subject case, the Appellant is not receiving goods directly from the consignor or consignee of the goods, but from M/s. Posco ISDC Pvt. Ltd., who themselves are acting as GTA, where they are receiving the goods from the consignor/consignee, and issuing the consignment notes in respect thereof The Appellant is merely a Goods Transport operator here and not a GTA - Since, in the subject case, it is M/s. Posco ISDC Pvt. Ltd. who would be generating the E-way bill prior to the movement of goods by road, therefore, M/s. Posco ISDC Pvt. Ltd. would be the actual transporter. Now, once the identity of the transporter is revealed, which in the subject case is M/s. Posco ISDC Pvt. Ltd., the contention of the Appellant that they would also be acting as GTA in the proposed arrangement is not sustainable. In a single transaction of transportation of goods, as consignment note is an evidence of custody of goods taken from owner of the goods and the privity of contract exists between the owner of goods and the GTA, and thus, it is the GTA, which issues the consignment note.
The Appellant is simply hiring out their transport vehicles to M/s. Posco ISDC Pvt. Ltd. for a consideration, hence, their services would be classified under the Heading 9966 of Notification No. 11/2017-C.T.(Rate), dated 28.06.2017, bearing the description “rental services of transport vehicles”.
Appellant's contention wherein it has been argued that when the whole work is sub-contracted, the classification of the service cannot change - HELD THAT:- It is opined that the Appellant's contention is fallacious as it has been established above that the actual transporter in the subject case is M/s. Posco ISDC Pvt. Ltd, and not the Appellant, therefore, it would not be proper to say that the whole work in the subject case, which is transportation of the goods by road, acquired by M/s. Posco ISDC Pvt. Ltd. from their clients, have been sub-contracted to the Appellant. The Appellant is merely supporting M/s. Posco ISDC Pvt. Ltd. in their activity as the GTA by way of renting out their transport vehicle.
Appellant's contention that the Advance Ruling Order has imposed restrictions on them in doing business as the order passed by the Advance Ruling Authority does not permit them to charge 12% GST on the forward charge basis in terms of Notification No.20/2017-C.T.(Rate), dated 22.08.2017 - HELD THAT:- It is observed that the ruling, passed by the MAAR, is in the context of the proposed arrangement propounded by the Appellant for the purpose of seeking Advance Ruling in the matter, where the Maharashtra AAR held that the activities carried out by the Appellant in the subject transaction, as discussed above, are not those of GTA. The Advance Ruling order does not debar the Appellant from acting as GTA in other transactions, where they enter into transport contract with the consignor or consignee directly.
Order passed by AAR upheld.
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2020 (9) TMI 1103
Allowability of deduction u/s 80IA(4)(iii) - as per revenue no single entity or its related enterprise can occupy more than 25% of the allocable area was violated - CIT-A allowed deduction - whether CIT(A) was justified in holding that the assessee is eligible for deduction while the condition that minimum number of 30 units should be operational for availing the benefit was not met since by 31.03.2010 only 16 units were operational? - HELD THAT:- When there is no counter findings placed on record by the Department, we do not find any reason to deviate from the view taken in assessee’s own case for A.Y. 2011-12 [2018 (4) TMI 1821 - ITAT PUNE] and following the same, we are of the considered view that the relief provided by the learned Commissioner of Income Tax (Appeals) to the assessee allowing the claim of deduction u/s 80IA(4)(iii) of the Act was done correctly and the said relief provided to the assessee is sustained.
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2020 (9) TMI 1102
Computation of deduction u/s.10A - reducing the impugned expenses both from the export turnover as well as from the total turnover - HELD THAT:- The issue raised is squarely covered in favour of assessee by the judgment in the case of CIT v. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT] had categorically held that when expenses are reduced from export turnover, the same needs to be reduced also from the total turnover, while computing deduction u/s. 10A - DRP is justified in its direction that the impugned expenditure that is reduced from the export turnover need to be reduced also from the total turnover, while computing deduction u/s. 10A - Decided against revenue.
Set off of brought forward losses - AO has reduced the brought forward losses from Bangalore (10AA unit) and Mumbai (10A unit) before computation of deduction u/s 10A/10AA - HELD THAT:- As relying on Yokogawa India Ltd. [2018 (5) TMI 357 - SUPREME COURT]while holding that losses cannot be set off against profits of eligible unit. In view of the judgment of the Hon’ble Apex Court, we direct the AO to calculate the deduction u/s.10A/ 10AA of the Act, without setting off the brought forward losses. It is ordered accordingly.
Expenditure on buy-back of shares - revenue or capital expenditure - HELD THAT:- In view of the judgment of the Hon’ble High Court of Karnataka in the case of CIT v. Motor Industries Co. Ltd. [2014 (10) TMI 1026 - KARNATAKA HIGH COURT] we hold that the expenses incurred by the assessee for buy-back of shares is allowed as a revenue expenditure.
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