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Showing 281 to 300 of 2063 Records
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2019 (1) TMI 1786
Liquidation Order - CIRP Process - expiry of period of 180 days' of CIRP period - HELD THAT:- The Secured Creditor, who is none other than the SBI has already filed winding up Petition before the Hon'ble High Court, Orissa. However, it is submitted on the side of the SBI that that Petition was not admitted and publication was not at all ordered. Therefore, there is no bar in proceeding further with the CIRP process in the case in hand. As the Committee of Creditors and the IRP failed in obtaining a Resolution Plan, under sub-section 6 of Section 30 of the Insolvency & Bankruptcy Code, 2016, and since there is no extension of period of CIRP beyond 180 days, at the instance of the Committee of Creditor, I have no other alternative other than to pass the order of liquidation in the manner as laid down in Chapter III, read with Section 33 of the Insolvency & Bankruptcy Code, 2016.
No reason advanced on the side of the SBI for not approving expenses rendered by the IRP. So also, no remuneration has been fixed at the said meeting. No reason also highlighted on the side of the CoC for non-approval of the fees claimed by the IRP. However, it appears to me that CoC is bound to reimburse the actual expenses rendered by the Operational Creditor for initiating the CIRP process. Therefore, the cost actually incurred and the fees for one month due to the IRP shall be fixed by the CoC and has to be paid to the Operational Creditor upon production of proof to prove that the expenses found spent by the IRP has been spent by the Operational Creditor. Upon satisfaction of SBI, the Financial Creditor the fees and expenses rendered by the IRP shall be fixed and upon proof of expenditure and payment of fees to the IRP, the CoC shall pay to the Operational Creditor within one month of the date of this order. Failing which the operational creditor can take appropriate steps to realise the cost and fees actually spent by it.
An order of liquidation is passed - Application disposed off.
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2019 (1) TMI 1785
Reimbursement of the initial cost of ₹ 2.5 Lakhs for enabling the IRP to continue with the CIRP - HELD THAT:- IRP on 16/08/2018 informed this Adjudicating Authority that Committee of Creditors in the first meeting dated 09/08/2018 did not approve his name as Resolution Professional and showed their unwillingness to continue with the CIRP process because winding up proceedings has been initiated at the instance of the Financial Creditor before the Hon'ble High Court at Cuttack. Accordingly, he filed his final report and thereafter he did not convene any meeting so as to ascertain the assets of the Corporate Debtor and could not proceed further and filed its report. The report is with the files.
Reserved for orders since there is no request for extension of period of CIRP u/s. 12 of the Code.
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2019 (1) TMI 1784
Grant of Bail - Smuggling - Sections 37 of the NDPS Act - petition in possession of intoxicating powder - constitutional validity of Section 37(1)(b)(ii) of the NDPS Act - High Court held that if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit `any offence' or `offence under NDPS Act' after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail.
HELD THAT:- There is no reason to entertain this petition.
SLP dismissed.
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2019 (1) TMI 1783
Violation of Fundamental Rights - Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms - Protection of Dignity of Women - validity of provisions of Sections 2(8)(i), Section 6(4), Section 8(1)(2) and (4) of Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 - HELD THAT:- The present legislation is given a cloak of bringing regulatory regime to regulate the places where there are dance performances. For this purpose, the impugned Act does not permit dance performances without obtaining licence under Section 3 of the Act. Further, it makes obscene dances as penal offence. No quarrel on this. However, at the same time, many conditions are stipulated for obtaining the licence, which are virtually impossible to perform. It is this reason that not a single establishment has been issued licence under the impugned Act even when it was passed in the year 2014. In fact, after the amendment in Maharashtra Police Act in 2005, no licences have been granted for dance bars. Thus, even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars.
The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced.
Petition allowed in part.
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2019 (1) TMI 1782
Disallowance of expenses u/s.14A r.w.r. 8D(2)(i)(ii) & (ii) - assessee alleged disallowance under section 14A read with Rule 8D on account of expenses incurred in relation to the said exempt income cannot exceed the amount of dividend income actually earned. - HELD THAT:- Since this issue is squarely covered by the decision in the case of Joint Investments Pvt. Limited –vs.- CIT [2015 (3) TMI 155 - DELHI HIGH COURT] wherein it was held that the disallowance under section 14A cannot exceed the actual amount of exempt income earned by the assessee, we allow the limited relief claimed on behalf of the assessee and restrict the disallowance made under section 14A read with Rule 8D to amount being the amount of dividend income actually earned. - Decided partly in favour of assessee.
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2019 (1) TMI 1781
Liquidation of Corporate Debtor - HELD THAT:- Considering the resolution approved by the COC, the facts and circumstances of the case, no meaningful resolution can be arrived at in the CIR Process. It is further submitted that two Registered Valuers were appointed to determine the fair value and liquidation value of the Corporate Debtor in accordance with Regulation 35 and both the have been submitted their valuation report to RP. Therefore the RP has stated that the case of the Corporate Debtor is a fit and appropriate case to be dissolved as recommended by the CoC and filed this Application for liquidation of Corporate Debtor.
This Adjudicating Authority deems it fit to Order liquidation of the Corporate Debtor - Application disposed off.
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2019 (1) TMI 1780
Correct head of income - Characterisation of income - Issue of treatment of long-term capital loss as business loss by treating it as a business income - HELD THAT:- Respectfully following the precedents of the earlier years [2018 (8) TMI 1961 - ITAT DELHI] and as a principle of consistency, we uphold the order of the CIT(A) that long term capital gain/capital loss cannot be treated as business income or loss and also long-term capital gain cannot be treated as business income. Accordingly, ground No. 1 raised by the revenue stands dismissed.
Disallowance u/s 14A - HELD THAT:- CIT(A) following the order of the earlier year has deleted the said disallowance of interest this issue has come up for consideration before the Tribunal in the earlier years and in so far as disallowance of interest is concerned, Tribunal has held that once assessee has huge surplus funds which exceeds the investment then no interest can be disallowed. Accordingly order of the Ld. CIT(A) deleting the disallowance of interest is upheld. - Decided against revenue.
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2019 (1) TMI 1779
Cancellation of agreement - vacation of shops - Whether in case of suppression of material fact the writ will be held to be maintainable being the writ court of equity? - HELD THAT:- It is evident that the lease deed agreement has been entered into in between the parties and as such the same are binding upon both the parties. The lessee are liable to pay the municipal charges enumerated under condition No. 4 while they have been restrained from making any transfer or sublet the aforesaid property or any part thereof to any other person/firm without the prior written permission of the lessor or its representative duly authorised in this regard.
There is no dispute about the fact that the litigant who is approaching the jurisdiction conferred under Article 226 of the constitution of India to High Court is supposed to come out with a clean hand and without suppression of material facts and the material facts has been defined which mean material for the purpose of determination of the issue.
Here, in the instant case the petitioners all along case is that the impugned orders have been passed without following the principle of natural justice but in fact the show cause notice has been issued and the same has been responded by them, therefore the same is said to be active concealment on their part and thus the writ petitions deserve to be dismissed on the ground of suppression of material facts.
The ground taken by the petitioners is violation of principle of natural justice but the same has been found to be a ground non-est because show cause notice has been issued which has been responded to, therefore, it will be said to be the material suppression of fact and hence the petitioners deserve to be given any benefit - Petition dismissed.
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2019 (1) TMI 1778
Revision u/s 263 - deduction u/s 80IB(10) - HELD THAT:- Tribunal noted that the Assessing Officer had carried out the detailed inquiries about the satisfaction of the relevant condition. This was not a case where a claim was granted by the AO without inquiry.
Tribunal noted that the stand of the assessee in this regard was supported by the decisions of the Tribunal on the same point. Inter alia on such grounds the appeal was allowed upon which the revenue has filed the present appeal.
The materials on record would clearly suggest that the AO was conscious of the requirement of the area of the plot of land being not less than 1 acre. In this context, he had issued show cause notice to the assessee and called for his explanation. As noted, the assessee's explanation was twofold. Firstly, there was errors in the land documents which was corrected later on and second that the reduction in the area of land for road widening and such other public purposes should be ignored, in view of the fact that the assessee was allowed to utilize the full FSI. The assessing Officer accepted such explanations and granted the reduction. The view that the Assessing Officer adopted was at that time supported by the decisions of the Tribunal. The Assessing Officer having taken a plausible view, as is well settled to series of judgments of various High Courts and Supreme Court, the Commissioner could not have exercised Revisional power.
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2019 (1) TMI 1777
Voluntary liquidation - Section 59 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- A perusal of the material available on record, goes to show that the Board of Directors of the Company has taken a conscious decision to close down the company due to non-availability of business prospects and non-availability of long-term financial resources, thus, as per them, it would not be a wise decision to carry on the business activities of the company from the economic point of view. Therefore, Company's Board of Directors proposed to liquidate the company voluntarily by invoking the provisions of Section 59 of the IBC.
Since there is no objection received from any angle opposing the voluntary liquidation of the company either from shareholders' side or from secured and unsecured creditors side or any adverse comments from public at large against such proposed liquidation, despite a public announcement was made by the liquidator in the website of the Insolvency and Bankruptcy Board of India (IBBI) - on perusal of the record of the present case, it is evident that the company is found not involved in any kind of business activities, wherein the public interest at large is involved or it is going to be affected adversely in case such dissolution of the company is ordered.
Since nothing adverse is found from the material available on record in respect of opposing the proposed liquidation of the corporate person, the present application deserves to be allowed.
This Adjudicating Authority in exercise of power conferred under Section 59 (8) of the Insolvency and Bankruptcy Code 2016, the Corporate Person (Applicant Company) " M/s. Shree Autotech Forge Pvt. Ltd." is ordered to be dissolved with effect from 16.01.2019 - Petition allowed.
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2019 (1) TMI 1776
Liquidation of Corporate Debtor - section 33 of IBC, 2016 - HELD THAT:- This Adjudicating Authority in exercise of powers conferred under Section 33 of the I&B Code, 2016, proceed to pass the following order:
(i) We order for liquidation of the Corporate Debtor viz., M/s. Antony Projects Private Limited, which shall be conducted in the manner as laid down in Chapter III of part II of the I&B Code, 2016;
(ii) This Tribunal, as recommended by the CoC, appoints Mrs. Aruna Ramachandran as Liquidator, who shall issue a public announcement stating therein that the Corporate Debtor is in liquidation as recommended by the Committee of Creditors;
(iii) The moratorium declared under Section 14 of the I&B Code, 2016, shall cease to have effect from the date of this order of liquidation;
(iv) Copy of this Order shall be sent to the Registrar of Companies, RD, OL and the Registered Office of the Corporate Debtor.
Application allowed.
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2019 (1) TMI 1775
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Service of demand notice - HELD THAT:- It is found that on withdrawal of the first demand notice, which as per the applicant is not as per the rule, the applicant issued fresh demand notice on 09.11.2017 in form No. 3 at the registered office address of the company. Since the same was returned undelivered, the applicant sent the demand notice through e-mail at the e-mail address of the company available in the Master Data of Ministry of Corporate Affairs. Hence, in view of this development, service of notice is found to be complete - As regards maintainability of the petition is concerned, Rule 5 (2) (b) of the Insolvency and bankruptcy (Application to Adjudicating Authority) Rules, 2016 allows service of demand notice by way of e-mail.
The issue with regard to the prior dispute as raised by the corporate debtor vide vernacular letter dated 01.03.2016, it is found that no such letter has been received by the applicant in view of the affidavit executed by the concerned courier agency certifying that on such date no letter was sent to the applicant through their agency by the corporate debtor - Thus, the corporate debtor failed to prove the issue of prior dispute. It is the applicant who provided evidence that no such dispute has been raised earlier by the corporate debtor vide letter dated 01.03.2016 which appears to be fabricated one.
On perusal of the documents filed by the operational creditor it is evident that the corporate debtor defaulted in making payments. The petition filed under Sections 8 & 9 of IB code is complete in all respects - Petition admitted - moratorium declared.
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2019 (1) TMI 1774
Dishonor of cheque - rebuttal of presumption - whether presumption is said to be rebutted by the accused and whether the trial Court was right in giving benefit to the accused? - HELD THAT:- The accused failed to rebut the presumption under Section 139 of the N.I. Act. The complainant succeeds in proving issuance of cheque by the complainant for discharge of debt of ₹ 35,000/- towards complainant. I conclude that there is a failure on the part of the complainant to pay ₹ 35,000/- within 15 days of receipt of notice on the background of dishonour of cheque. Hence, complainant succeeded in proving commission of offence under Section 138 of the N.I. Act by the accused.
There are 3 kinds of punishments laid down under Section 138 of the N.I. Act. There can either be imprisonment or there can only be fine. There can also be combination of both - the accused is fined ₹ 40,000/-, out of which ₹ 35,000/- be paid to the complainant towards compensation - Imprisonment can be imposed if fine amount is not paid within reasonable period.
Appeal allowed.
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2019 (1) TMI 1773
Liquidation of Corporate Debtor - case of Committee of Creditors is that in absence of any ‘resolution plan’, the application under Section 33 was filed by the ‘Resolution Professional’ with the approval of the ‘Committee of Creditors’ after 80 days. However, the Adjudicating Authority awaited to find out whether any other person is ready to file ‘resolution plan’. The impugned order was passed on 26th October, 2018 only on completion of 180 days.
HELD THAT:- In view of the aforesaid stand taken by the respondent and not denied by the appellant and in absence of any ‘resolution plan’, no other option left but to dismiss the appeal - Appeal dismissed.
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2019 (1) TMI 1772
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - dishonor of cheque - HELD THAT:- A perusal of the documents relied upon by the Corporate Debtor however does not support the case of the Corporate Debtor. It is not denied that a memorandum of understanding dated 30th January, 2016 for purchasing material by the Corporate Debtor was executed, though it is stated to be executed under duress. Similarly, proforma invoices were issued upon the Corporate Debtor upon coercion to place purchase orders as well as acknowledge receipt of material - In view of the documents on record which fully support the case of the Operational Creditor, no credence can be given to oral submissions, whatever be the justification adopted by the Corporate Debtor. The issuance of cheques are in itself an acknowledgment of a liability which remains undischarged. The purchase orders, invoices, acknowledgment of receipt of material cannot be swept under the carpet on the mere submission that it was a sham transaction. Under such circumstances, the prayer made by the operational creditor merits consideration.
Petition admitted - moratorium declared.
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2019 (1) TMI 1771
SSI Exemption - use of brand name of others - appellant had been clearing manufactured goods under the brand name ‘ADVANCE’ which allegedly belonged to the joint venture partner in the United States of America and the use being that of an ineligible brand name, it was concluded that duty liability should be discharged without the benefit of the exemption notification - HELD THAT:- Reliance placed in the decision in the case of COMMR. OF C. EX., MUMBAI-V VERSUS CAPITAL CONTROLS INDIA (P) LTD. [2010 (7) TMI 465 - CESTAT, MUMBAI] where it was held that any absolute right over the brand name was not transferred or assigned by the Licensor to the assessee. Therefore, the respondent cannot claim SSI benefit on the strength of the said agreement, though they can claim the benefit on the strength of the certificate of registration.
The decision of the Tribunal pertains to the period from April 1998 to June 2000 - The present dispute pertains to the period from April 2003 to November 2003 and from May 2004 to December 2004. In the light of the above decision of the Tribunal, entitling the appellant the use of brand name as their own, the findings of the first appellate authority fails.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1770
Reopening of assessment u/s 148 - issues raised on the merits by the writ petitioner are pending before the Income Tax Appellate Tribunal, which is a Second Appeal - HELD THAT:- Though the learned counsel for the writ petitioner argued various points with reference to Section 148 this Court is of an opinion that the present writ petition is filed at the stage when the notice under Section 148 of the Income Tax Act, 1961, was issued. Thereafter, the writ petitioner submitted explanations / objections and the Assessing Officer adjudicated the issues and passed an order. Thus, the question of considering the grounds raised with reference to the notice issued under Section 148 does not arise at this length of time.
Final assessment order passed by the Assessing Officer was taken by way of an appeal to the Appellate Authority and thereafter, to the Income Tax Appellate Tribunal and the said appeal is now pending adjudication.
All the grounds raised in the present writ petition as well as the additional grounds, if any, shall be raised before the Appellate Tribunal by the writ petitioner by producing documents or other materials.
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2019 (1) TMI 1769
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- The given petition is to enforce the payment of money secured by a mortgage of immovable property. Hence, as per article 62 of the Limitation Act, 1963, the limitation period is twelve years from the date when the money sued for becomes due. Here, the Date of Default is 11.03.2015 as per Form I annexed to the petition and the petition is filed on 29.09.2017. In the absence of any specific denial or evidence from the side of the Debtor, it is unreasonable and unjustifiable not to believe the date of default as 11-3-2015. Hence, this Bench is of the view that in either case, i.e. three years or twelve years, this petition is well within limitation and the contention of the respondent that the debt is time barred is rejected.
Filing of false and incomplete statements of accounts by the Petitioner - HELD THAT:- Since the Corporate Debtor's case is that these entries in Bankers Book are not in accordance with the Bankers' Book Evidence Act, it is essential to look into Part V of Form I in respect to Entry 7 of this Part V. In Entry 7, two things are requisite, one is, it must be a copy of entry in a Bankers Book, two, that copy shall be attached with Form No. 1. If we see the definition of "Bankers' Books", statement of account being a record used in the ordinary business of the Bank, it will fall within the definition of Bankers' Book. In Entry No. 7, what is asked to attach is the copy of the Bankers' Book, it has not been asked to file a certified copy as certified under Bankers Book Evidence Act. Therefore, it can't be said that unless a certified copy is filed, it should not be looked into.
Existence of debt and default or not - HELD THAT:- The Financial Creditor has established that the loan was duly sanctioned and duly disbursed to the Corporate Debtor but there has been default in payment of Debt on the part of the Corporate Debtor - the nature of Debt is a "Financial Debt" as defined under section 5 (8) of the Code. It has also been established that admittedly there is a "Default" as defined under section 3 (12) of the Code on the part of the Debtor.
The Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, this Petition deserves 'Admission' - petition admitted - moratorium declared.
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2019 (1) TMI 1768
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority, on perusal of the documents filed by the creditor, is of the view that the corporate debtor defaulted in repaying the loans availed and also placed the name of the insolvency resolution professional to act as interim resolution professional and there being no disciplinary proceedings pending against the proposed resolution professional, therefore the application under sub-section (2) of section 7 is taken as complete, accordingly this Bench hereby admits this petition.
Petition admitted.
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2019 (1) TMI 1767
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 Petitioner submitted that the loan was shown in the balance sheet of the Corporate Debtor which is an acknowledgement of liability and hence the debt is not barred by limitation. However, the Corporate Debtor has not disputed the fact that the loan was shown as a liability in the balance sheet of the Corporate Debtor. When the liability is shown in the balance sheet that is a clear acknowledgement of debt by the Corporate Debtor - There are umpteen numbers of judgements to say that the debt shown in the balance sheet is an acknowledgement of liability.
This adjudicating authority having satisfied with the fact that the Corporate Debtor defaulted in making payment towards the liability to the petitioner, the petition deserves to be admitted.
Application admitted - moratorium declared.
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