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Showing 281 to 300 of 1740 Records
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2019 (9) TMI 1466
Application for verification genuineness of red sander logs and its transportation through transit permit issued by the A.P. Forest Department - allegation in the writ petition is that in spite of the fact that the petitioner had made an application for issuance of Certificate of Origin of goods stored (red sanders) at licensed godown of the Forest Officials, the application has not been disposed of till date - N/N. 12/2015-2020, dated 29.07.2019 - HELD THAT:- Inasmuch as the process has already been initiated on the application submitted by the petitioner, the 3rd respondent is directed to complete the process of verification and communicate the decision to the petitioner, within a period of four (4) weeks from today.
Petition disposed off.
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2019 (9) TMI 1465
Grant of registration u/s 80G(5)(vi) denied - genuineness of the activities for grant of approval under section 80G(5)(vi) of the Act cannot be verified - assessee was granted registration under section 12AA - HELD THAT:- The object of grant of recognition under section 80G is to promote charitable activities and to mobilize resources which can be generated by the assessee trust from the potential donors as well as public at large. Therefore, denial of recognition under section 80G merely for the fact that the activities have not been carried out by the assessee trust and thus cannot be verified is not appropriate.
CIT(E) has not spelt out non-fulfillment of any of the conditions specified under section 80G(5) of the Act, therefore, it is not a case where any of the conditions specified for grant of approval have not been fulfilled by the assessee trust. - Decided in favour of assessee.
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2019 (9) TMI 1464
Weighted deduction u/s 35(2AB) - Assessee claimed deduction on scientific research expenses incurred by it @ 200% - AO noticed that the assessee has not furnished Form No.3CL issued by DSIR, New Delhi,the prescribed authority certifying the expenses incurred on scientific research - AO restricted the claim of revenue expenditure to 100% and disallowed capital expenditure - also rejected the alternative claim of the assessee to allow depreciation on the capital expenditure - HELD THAT:- In the instant case, the year under consideration being asst. year 2014-15, the same would fall prior to 1/4/2016 and hence the tax authorities are not justified for insisting on production of Form NO.3CL for allowing deduction u/s 35(2AB) of the Act. Accordingly, we set aside the order passed by the ld CIT(A) and direct the AO to allow the deduction @ 200% of the expenditure incurred by the assessee, after examining the claim from the books of accounts. - Decided in favour of assessee.
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2019 (9) TMI 1463
Liquidation of Corporate Debtor - Section 33 read with Section 34 of Insolvency & Bankruptcy Code (IBC) 2016 - HELD THAT:- Attempt have been made by the COC for resolution of insolvency first by reducing the net worth criteria as well as by giving opportunity to the promoter of the CD, being the resolution applicants to provide a better Resolution Plan to prevent the company from going into liquidation but despite best efforts of the COC, no resolution plan submitted by the resolution applicants was meeting their expectations as against the amount claimed by the creditors payment was only to the extent of 15.24% in relation to cash component and 8.27% by allotment of Equity share component in the Resolution Plan. It is pertinent to note that total amount claimed in relation to financial creditors, be it secured or unsecured as well as operational creditors including government and workmen and employees dues aggregates to a sum of ₹ 5175.63 lacs against which the admitted claim is to the extent of ₹ 5152.61 lacs, whereas the resolution plan provided only for 794.92 lacs in cash component and ₹ 426.21 lacs in Equity shares component expressed in value terms.
The hair cut which was required to be suffered by the respective members of the COC is purely a commercial decision of the members of the COC and taking into consideration the overall interest including the commercial one, if a decision has been arrived at by the COC after making considerable efforts as is evident from the facts which have had transpired during the CIRP of the Corporate Debtor for resolution and by the rejection of the resolution plan the Creditor have thereby hurtled the CD to liquidation cannot be faulted.
In view of the expiry of the period CIRP has contemplated under the provisions of IBC and as the resolution plan had also been rejected by the COC by overwhelming majority of more than 84%, this tribunal taking into consideration the provisions of Sec. 33 of IBC is perforce required to initiate the liquidation process in relation to the CD.
The Corporate Debtor is allowed to be liquidated - application disposed off.
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2019 (9) TMI 1462
Restoration of the name of the Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - whether the Company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored in the Register of Companies? - HELD THAT:- The present petition is filed by the shareholder of the Company and is within the period of 20 years from publication in the Official Gazette of notice under Section 248(5) of the Act.
Despite of the fact that the company has no revenue from operations in the Financial Years 2013-14 to 2016-17, the Company has recently acquired the ownership of property bearing No. 52 A, Friends Colony East, New Delhi as a result of Arbitral Award passed by Sole Arbitrator. Now, the company has acquired this property and can utilize it to carry on its business activities. Copy of the Arbitral Award dated 28.03.2018 is a part and parcel of the record. Hence, the company has been able to show that it was carrying on business or in operation or in operation at the time of its name being struck off from the Register of Companies. In the submissions made on behalf of the ROC and the Income Tax Department, no objection to the restoration of the name of the Company, has been raised - the ingredients provided for in Section 252(3) of the Act, are satisfied.
The petition is allowed and the name of the company be restored in the Register of Companies, subject to deposit of ₹ 20,000/- as costs.
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2019 (9) TMI 1461
Maintainability of application - initiation of CIRP - Corporate Debtor started default in making payment of outstanding invoices and failed to make payment for the goods supplied and invoices raised by Operational Creditor - service of demand notice - Corporate Debtor said that there appears to be some delay in making the payments but the respondent was making regular payment to the petitioner.
HELD THAT:- Prior to going to the merits of the case by this Tribunal, it was observed that the notice of demand enabling the filing of the present petition has not been sent by the Petitioner "Kutch Chemicals" rather it was sent by "Panoli Intermediates India Pvt. Ltd.". Thus the Tribunal is of the view that that failure of delivery of notice of demand upon the Corporate Debtor by the Operational Creditor makes this application liable to be rejected as held by the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 194 of 2019 in the matter of M/S KRYSTAL INTEGRATED SERVICES PVT. LTD. VERSUS M/S INDIAONTIME EXPRESS PRIVATE LIMITED [2019 (9) TMI 417 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] relying upon the decision of the Hon'ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT].
There are no merit in the submissions of the Operational Creditor in order to sustain the plea that notice under section 8, IBC, 2018 should be deemed to served - this petition on the issue of maintainability arising out of service of notice of demand having not been delivered upon the corporate debtor in accordance with the provisions of section 8 of IBC, 2016 read with Rule 5 of AAA Rules 2016 stands rejected in exercise of section 9(5)(ii)(c) of IBC, 2016 but without cost.
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2019 (9) TMI 1460
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues due to Operational Creditors - existence of debt and dispute or not - HELD THAT:- The present petition is filed by the Operational Creditor since payment for invoices issued in respect of the goods supplied, have not been paid by the corporate debtor. The total amount of debt is stated to be ₹ 55,28,133/-. Along with the petition, the Operational Creditor has filed the Ledger of the Corporate Debtor in the books of the Operational Creditor which is placed as annexure A-7 of the petition. The statement of accounts of Operational Creditor maintained with Union Bank of India ranging from 01.04.2015 to 14.12.2018 is also found attached with the petition as Annexure A-8 - It is evident that the Corporate Debtor has already made the payment of ₹ 90,000/- after issuance of the demand notice as prescribed in Form 4 dated 31.10.2018, thereby reducing the liability from ₹ 55,28,133/- to ₹ 54,38,133/-.
No objections are being raised to the completeness of the application filed under Section 9 (2) of the Code. The operational debt remains unpaid and the demand notice under Section 8 of the Code was duly delivered to the Corporate Debtor on 31.10.2018. The reply to the demand notice has been examined above and found to be not acceptable. The proposed Resolution Professional Shri Vigyan Prakash Arora, has filed Form No.2 in which he has stated that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI.
In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition is admitted for initiation of the CIRP process in the case of the Corporate Debtor M/s. Addinath Rubbers Private Limited - moratorium declared.
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2019 (9) TMI 1459
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:- There is no dispute with regard to the fact that the Corporate Debtor has taken Credit facilities from the Financial Creditor on 20.08.2011. There is no dispute in the fact that the Corporate debtor has secured Credit Facilities taken by equitable mortgage of immovable property (exhibit B 31). The Filing of the proceeding before the DRT in 2014 under SARFAESI Act 2016 are also not disputed. The Corporate Debtor also submitted that in the case filed before the DRT Ernakulam claimed only an amount of ₹ 1,10,25,692.86/-.
In the instant case it appears that the default in payment of debt is a "default" as defined in section 3(12). Similarly, according to section 3(11) a debt means liability of obligation in respect of claim and for the meaning of claim if we refer 3 (6) which defines claim to a right to payment even if it is disputed. Besides that, the word 'default' is of rupees one lakh or more (Section 4). The IBC provision may be trigger by financial creditor or operational creditor - In the instant case as stated the debt is claimed by financial creditor is more than 1 Lakh Rupees. Again, as discussed herein before the Financial Creditor has proved that an amount of term loan along with bank guarantee was disbursed against the consideration for the time value money which was defined under Section 5(8) of the code.
Time Limitation - HELD THAT:- The limitation for enforcing payment of money secured by a mortgage charged by the immovable property is twelve years at the time when the money sued become due. Thus for 12 years after becoming due, the debt would be payable by Law. In the Present matter, the sanction letter is on 15.05.2010. Apart from proceeding filed in DRT Ernakulam in the year 2013, the loan was secured by equitable mortgage and as such, it cannot be said that the debt was barred by limitation, when Section 7 application was filed on 31 July 2018 - Hence in this case the admitted fact is that the Corporate Debtor by taking the aforesaid loan from the financial creditor which become a due debt by executing some bank guarantee including equitable mortgage is not in dispute. And therefore, the facts and circumstances in the instant case, is not similar with the aforesaid case cited by the Learned senior counsel for the Corporate Debtor. Thus, the claim of financial creditor in the instant case cannot be said to be a debt which is time barred.
This adjudicating authority having satisfied with the fact stated by petitioner, the Corporate Debtor defaulted in making payment towards the liability to the petitioner, Hence the petition deserves to be Admitted - Application admitted - moratorium declared.
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2019 (9) TMI 1458
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- The Corporate Debtor made it clear that LCs were not honoured and they were taking steps with the Bank officials for renewal etc and further to take appropriate steps. So assurance is given to the Operational creditor by Corporate Debtor that payment will be made for two invoices. At no time the Corporate Debtor raised any dispute with regard to delay of delivery of Tphone Units or on any other ground. So prior to the Demand Notice dated 15.12.2018, there was no dispute raised by the Corporate Debtor at any point of time. In the email shown as Annexure-22 dated 12.10.2018, the Corporate Debtor in fact requested time for renewal of Letter of Credit limits and to make payments. Delivery of consignment is accepted and secondly rejection of Letter of Credit was also confirmed and further requested time. Thus, there is no preexisting dispute raised by the Corporate Debtor prior to issue of demand notice.
The Corporate Debtor has not taken any convincing defence for the claim made by the Operational Creditor. There was absolutely no prior dispute and whatever is alleged is only after filing of the Petition against Corporate Debtor. The alleged dispute is only imaginary and is not supported by any evidence. On the other hand, Operational Creditor has placed documentary evidence in support of proof of supply of Tphones and dishonour of Letter of Credit and also default. Therefore, the Petition deserves to be admitted.
Petition admitted - moratorium declared.
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2019 (9) TMI 1457
Updation of applicants' claims by collating it and to prepare Memorandum of Information - reconstitution of Committee of Creditors (CoC), in terms of the provisions of the I & B Code - Exclusion of certain period from CIRP process - HELD THAT:- The newly appointed member can be provided a copy of the Resolution Plan in compliance of the decision of the Hon'ble Supreme Court of India, in the matter of Vijay Kumar Jain vs. Standard Chartered Bank [2019 (2) TMI 97 - SUPREME COURT], so as to express their opinion on the same either they may ratify the Resolution Plan already approved by the CoC with its requisite majority or they may record their dissenting vote, such exercise needs to be completed in the light of the above stated decision of the Hon'ble Supreme Court of India. If such formality is complied with, the Resolution Plan, which earlier has been approved in the 10th meeting of the CoC dated 06.05.2019 will continue to be binding and operative on its all members.
Exclusion of certain period from CIRP process - HELD THAT:- This Adjudicating Authority is competent to exempt/exclude certain period from Corporate Insolvency Resolution Process in the light of the decision of the Hon'ble Supreme Court of India in the matter of Arecellormittal vs. Satisk Kumar Gupta [2018 (10) TMI 312 - SUPREME COURT]. The period consumed in pending litigation can be excluded, but it cannot be more than 330 days. Moreover, even expiry of these 330 days - thus, the period consumed in the hearing and disposal of this IA, i.e. IA 547 of 2019, i.e., filed on 09.09.2019, needs to be exempted for the purpose of counting of Corporate Insolvency Resolution Process of 270 days, equally the time consumed for hearing of disposal of IA No. 427 of 2018, (filed on 19.11.2018), till it was decided/disposed on 23.08.2019, to be excluded for counting the purpose of Corporate Insolvency Resolution Process of the Corporate Debtor company.
Application allowed in part.
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2019 (9) TMI 1456
Initiation of CIRP - default in handing over possession - it is contended by the CD that the FC for the termination of the agreement has relied upon a wrong clause, as invocation of clause 6.4 of the Agreement is completely misplaced on the part of the FC - HELD THAT:- It is clearly evident that even after the offer of possession made in the year 2017 by the CD effective possession of the property contracted to each of the parties have not been given by the CD which is also admitted by CD, however, wants to consider exclusion of time of delay as beyond its control, which plea cannot be entertained.
It is required to be kept in mind by this Tribunal the recent pronouncement made by the Hon'ble Supreme Court of India in the matter of Pioneer Land & Infrastructure Ltd. & another Vs. Union of India and others [2019 (8) TMI 532 - SUPREME COURT], wherein the Hon'ble Supreme Court after considering several objections raised by the Real Estate Developers as to whether a Home Buyer can be considered as an FC, has categorically come to the conclusion that Home Buyers can be considered as FCs, both prior to as well as subsequent to the amendment of Sec. 5(8) (f) of IBC 2016 by Amendment Act of 2018 incorporating the explanation to the said provisions as the Home Buyers finance the project significantly as developed by the Real Estate Developers.
It is clearly evident that even after the offer of possession made in the year 2017 by the CD effective possession of the property contracted to each of the parties have not been given by the CD which is also admitted by CD, however, wants to consider exclusion of time of delay as beyond its control, which plea cannot be entertained - Petition admitted - moratorium declared.
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2019 (9) TMI 1455
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- This adjudicating Authority finds that the Corporate Debtor admits that debt and offered to settle the amount and his only grievance is in respect of amount. According to the Corporate Debtor, the amount is wrongly mentioned and the Corporate Debtor has not disputed about the debt.
The application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete. It further appears that there is default in non-payment of the debt owed by the corporate debtor, applicant has annexed sufficient evidence to show the default on behalf of the corporate debtor. Therefore application filed U/S 7 of IBC deserves to be admitted.
Application admitted - moratorium declared.
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2019 (9) TMI 1454
Direction against the respondent to release the funds of the corporate debtor - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The effect of the Exception to Section 28 is to limit the period provided under the Limitation Act from 3 years to 1 year in case of banks and financial institutions to issue a guarantee. If a claim is made and not honoured then the party is entitled to a period of 3 years to sue for enforcement of the rights. If a claim is not made within that time, the right to make a claim for breach of guarantee is lost - In the present case, claim itself was not made within the stipulated period of 1 year, hence, the right to make a claim is lost. Therefore, the objection of the respondent-bank is unsustainable and it cannot refuse to release the above referred fixed deposit of ₹ 10 Lacs, belonging to the corporate debtor.
The respondent-bank are directed to release the fixed deposit of ₹ 10 Lacs of the corporate debtor within 2 weeks from today - application disposed off.
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2019 (9) TMI 1453
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- On perusal of the records it is found that the respondent has not raised any dispute regarding the operational debt payable to the operational creditor. Moreover, the respondent has accepted and acknowledged the claim amount by way of affidavit.
In the light of the provisions thereof as enshrined in Insolvency & Bankruptcy Code, this adjudicating authority is of the considered view that operational debt is due to the Applicant. That, service is complete and no dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default.
That, the Application filed by the Applicant is complete in all respects - Petition admitted - moratorium declared.
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2019 (9) TMI 1452
Direction to Resolution Professional/Respondent to issue a copy of the Resolution Plan so approved by the CoC - It is submitted that the Applicant has no right in the capacity of Operational Creditor to seek a copy of the Resolution Plan since the debt of the Applicant is less than ten percent - HELD THAT:- It is clearly provided in Sec. 24(3)(c) of the Code that only such Operational Creditors or their representative can take part in the CoC meeting whose aggregate dues are not less than 10% of the total debt of the Corporate Debtor. The provisions of Sec. 24 when read with provisions of Sec. 30(5) lead us to unescapable conclusion that while potential resolution applicant, members of ex-Board of Directors and Operational Creditors having not less than 10% of total debt of the Corporate debtor can attend the meeting while a potential Resolution Plan is considered by CoC, it does not imply that a potential Resolution Plan should be handed over to such members of ex-Board of Directors and Operational Creditors or even other Resolution Applicants.
This Adjudicating Authority finds that the claim of the Applicant as collated and noticed by the resolution professional is less than 10% of the total debts of the Corporate Debtor and thus the case cited by the learned Counsel for the RP is squarely applicable in the present case - This Adjudicating Authority is of the view that the Applicant is not entitled for the Copy of the Resolution Plan.
Application disposed off.
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2019 (9) TMI 1451
Validity of remand of the matter to the original Assessing Authority for sharing the basis for reassessment with the Petitioner/Importer - HELD THAT:- The Petitioner’s submission that the Tribunal could not have remanded the matter to the original Assessing Authority, has no merit. The reasons for the said remand are found in the impugned order extracted hereinabove. The assessment had to be done in accordance with Section 14 of the Customs Act read with the Customs Valuation Rules and the reasons for the same were not forthcoming from the order passed by the original Assessing Authority. The matter could not have been left at large and since the original order was not found to be in accordance with law, the Tribunal rightly remanded the matter to the original Assessing Authority for carrying out the assessment after sharing the basis for the same with the Petitioner.
There are no observations on the merits of the case and matter shall be examined by the original Assessing Authority on its own merits and in accordance with law - Appeal dismissed.
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2019 (9) TMI 1450
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - debt due and payable or not - existence of a dispute between the parties - HELD THAT:- It is clear that the Adjudicating Authority after satisfying itself that the 'operational debt' is exceeding ₹ 1 lakh and the application shows that the aforesaid debt is due and payable and has not been paid, in such case, in absence of any existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid 'operational debt', the application under Section 9 cannot be rejected and is required to be admitted.
Since all the aforesaid condition are fulfilled in the instant case, the application submitted by Operational Creditor is Complete in all respects and there is no defect pointed out by Corporate Debtor. It is also proved that payment of unpaid operational debt has not been made by the Corporate Debtor.
Application admitted - moratorium declared.
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2019 (9) TMI 1449
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 has succeed in establishing that the loan of ₹ 20,00,00,000 is given to corporate debtor and that has not been paid by the Corporate Debtor and Corporate debtor has admitted this fact by filing an additional affidavit on 05.09.2019 stating in para 3 that the corporate debtor has no objection if this Adjudicating Authority appoints IRP in the case.
Hence, the application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete. It further appears that there is default in non-payment of the debt owed by the corporate debtor, applicant has annexed sufficient evidence to show the default on behalf of the corporate debtor. Therefore application filed U/S 7 of IBC deserves to be admitted.
Application admitted - moratorium declared.
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2019 (9) TMI 1448
Issuance of directions to the Interim Resolution Professional to accept and admit the claim of the applicant - direction to IRP to revise the list of creditors of the corporate debtor - HELD THAT:- Admittedly, the total claim of M/s. Edelweiss Assets Reconstruction Company Limited is only based upon the corporate guarantee dated 03.05.2018 for the purpose to secure loan sanctioned to the principal borrower vide loan agreement dated 07.10.2013 and nothing more. However, M/s. Edelweiss Assets Reconstruction Company Limited has lodged the very same claim, for admission in different insolvency processes respectively. Not only there is duplication of selfsame claim, but also the applicant financial creditor, if such duplicate claims are allowed, will enjoy proportionate voting rights in both the CoCs - No doubt the liability of guarantor is co-extensive with that of the principal debtor, however the applicant couldn't place any precedent in support of their contention that when a claim has been admitted in one CIRP, similar selfsame claim can also be admitted and pursued in other Insolvency Processes simultaneously.
The finding of the Hon'ble NCLAT that for the same set of debt, claim cannot be filed by same 'Financial Creditor' in two separates 'Corporate Insolvency Resolution Processes' has not yet been varied, modified or set-aside nor has been stayed. Judicial discipline therefore demands that the precedent laid down by Hon'ble Appellate Court needs to be followed.
The claim of the applicant being a repetition of the claim which already stands admitted in other insolvency process, cannot again be admitted in the present CIRP - Application dismissed.
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2019 (9) TMI 1447
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - HELD THAT:- During the course of the submissions, it is brought to the notice of this Tribunal by the CD that they have remitted a sum of ₹ 13,23,953/- vide RTG clearing on 08.8.2019. When this Tribunal confronted, Ld. Counsel for the Petitioner of the Order dated 22.7.2019 and as to how the Petitioner, when the Petition is pending before this Tribunal, the Petitioner has accepted the payment in relation to the claim, to which, Ld. Counsel for the petitioner seeks to explain that even after the payment has been made, a claim still exists in a sum in excess of Rs. one lakh which remains unpaid and in the circumstances, this Tribunal has the pecuniary jurisdiction to entertain this petition and dispose off the petition on merits.
Thus, having accepted the payment from the CD, it is incumbent to the petitioner to either withdraw the petition and not to proceed with the petition or alternatively, should not have accepted the amounts at all more so it was posted for arguments and to persist with the Petition based on representation. However, the Petitioner having chosen to accept the payment in relation to the claim and even though in part and for the balance of the claim seeks to proceed with the Petition, to which, we are not in a position or inclined to accede to the request.
Petition dismissed.
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