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Showing 341 to 360 of 1740 Records
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2019 (9) TMI 1405
CENVAT Credit - input services - premium paid to insure the deposits of its constituents by the banks - HELD THAT:- This very issue has been referred to the larger bench of the Tribunal in the case of STATE BANK OF PATIALA, PUNJAB VERSUS COMMISSIONER OF CE & ST, CHANDIGARH-II [2019 (10) TMI 818 - CESTAT CHANDIGARH] - at the request of the parties, these appeals are adjourned by a period of 12 weeks, to enable the Advocates to place the decision of larger bench before us for perusal.
Stand over to 18th December, 2019.
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2019 (9) TMI 1404
Demand of the amount of ₹2.3 crores to be paid by Orbit Lifescience Private Limited on the basis of the observations made by the NCLAT - HELD THAT:- All the parties shall file their respective submissions before the next date of hearing.
The Resolution Applicant, Resolution Professional as well as the Lenders of the Resolution Applicant shall file their convenience compilations and the Resolution Applicant shall also file an affidavit with regard to the latest amendment made to Section 30 (2) of the Code before the next date of bearing - List the CA on 17.10.2019.
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2019 (9) TMI 1403
Income from House Property - Annual Letting Value of the unsold units lying as Stock in Trade - notional income by way of ALV in respect of the unsold flats cannot be taxed in the hands of the assessee - appellant is engaged in the business of real estate development and the unsold flats are held as Stock in Trade and not as Investments - HELD THAT:- It is an undisputed fact that the assessee never let out the unsold flats held as stock-in-trade. It is the case of the AO that the provisions of sections 22 to 23 of the Act should be invoked for taxing the notional income on such flats.
As perused all the four grounds revolved around the provisions of sections 22 to 23 of the Act relating to the head of income i.e. income from house property. It is an undisputed fact the provisions of section 23(5) of the Act was amended by the Finance Act, 2017 w.e.f. 01.04.2018 and, therefore, these provisions will not come to the rescue of the AO for bringing the deemed income on such unsold flats to taxation under the head ‘income from house property’.
In absence of enabling the provisions of the Income Tax Act, calculating the notional income in respect of the properties which were not rented out and rental income was never earned actually, the Assessing Officer’s policy to tax such income is unsustainable in law in view of the various decisions cited in the preceding paragraphs of this order. Accordingly, the grounds raised by the assessee are allowed.
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2019 (9) TMI 1402
Reopening of assessment u/s 147 - bogus purchases - HELD THAT:- Recorded reasons state that the assessee had availed accommodation entries on bogus bills from M/s.Nice Diamonds and M/s. Nice Diamonds is belongs to group of Shri Bhanwarlal Jain where they have admitted in the course of the search that M/s. Nice Diamonds is managed by them and they are bogus hawala dealers. AO has reason to believe that income had escaped assessment based on the above information and formed an opinion by himself and there is no borrowed satisfaction. Thus respectfully following the case of CIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. [2007 (5) TMI 197 - SUPREME COURT] we uphold the reopening made by the Assessing Officer u/s. 147.
Bogus purchases - estimation of profit element at 8% - CIT(A) held that only the profit element embedded in such purchases shown to have been made from the non-existing parties are to be brought to tax - HELD THAT:- We find that what advantage the assessee could have got on purchasing the diamonds in gray market was only 1% being the VAT, as the assessee made purchases in the grey market without paying VAT, but obtained only the accommodation entries. Further as per the report of the task group constituted by the Department of Commerce the margin in trading in the diamond industry was only 1 to 3%.
Taking the average of the industry average i.e. 2% and the advantage which the assessee got from purchases from the gray market i.e. 1% towards VAT, in our view at best the disallowance can be made only at 3%. Therefore,profit element margin embedded in these purchase transactions should be taken @3% for these Assessment years i.e. A.Y.2011-12 & 2012-13. Accordingly, we direct the Assessing Officer to estimate the profit element @3% of the purchases treated as non-genuine and re-compute the income of the assessee for all these Assessment years.
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2019 (9) TMI 1401
Oppression and mismanagement - Section 241, 242 & 244 of the Companies Act, 2013 - main contention of the Petitioners is that Respondents 2 & 3 who are now managing the Company, who are the Directors of the Company are indulging in oppression and mismanagement - HELD THAT:- The Petitioners were on the Board. Subsequently they resigned. Thereafter, Respondents 2 & 3 became Directors. The appointment of Respondents 2 & 3 to the Board is not denied. The resignations by Petitioners as Directors of the Company is also not in dispute. The contention of Petitioners that AGM was held for the years 2016-17 & 2017-18 without giving notice to the Petitioners. This matter to be looked into at the time of final hearing. The further case of Petitioners that Respondents indulged in acts of oppression and mismanagement such as not convening EGM though demanded by the Petitioners. This aspect will also be looked into at the time of final hearing on the main petition. There was correspondence between petitioners and Respondents with regard to allotment of shares to the Petitioners by converting the debt into equity. The contention of Respondents that it is Respondent No. 2 who gave money as unsecured loans. However. Petitioners got certain part of debt converted into equity and allotted the shares to themselves. This is the main allegation made by Respondents 2 & 3 against petitioners. This needs to be considered in the main petition at the time of final hearing.
When Company is in urgent need of money, the only alternative with the Company is to go for rights issue. The other aspects raised by the Petitioners that there is no need to go for rights issue are all matters to be considered at the time of final hearing. At present, the offer is also made to the Petitioners and it is for the Petitioners either to subscribe or not to subscribe for the rights issue - At present there is no need to grant any interim reliefs. The main petition itself is ripe for hearing. Therefore, at present we do not consider any ground to grant any interim relief in favour of petitioners. Even if rights issue is allowed to continue and allotment is to be made as per issue, it is subject to the result of the main petition. So interest of the Petitioners if any is safeguarded with rights issue if allowed to be proceeded with. We make it clear, it is subject to the result of the main petition.
Petition dismissed.
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2019 (9) TMI 1400
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- On perusal of the documents submitted by the financial creditor, it is clear that debt amounting to around ₹70 crore is due and payable by the Corporate Debtor to the Applicant as on the date of filing of this application. The outstanding debt is even admitted by the Corporate Debtor in its affidavit in reply by stating that the amount of debt outstanding is ₹70 crore. The outstanding amount that is admittedly in default is more than ₹1,00,000/- - The application filed by the financial creditor is on proper form 1, as prescribed under the Adjudicating Authority Rules and application is complete.
The Application under sub-section (2) of Section 7 of I&B Code, 2016 filed by the financial creditor for initiation of CIRP in prescribed Form No1, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the petition filed under section 7 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted.
Petition admitted.
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2019 (9) TMI 1399
Revision u/s 263 - Disallowance u/s 40(a)(iib) - Electricity duty u/s. 3(1) of the KSED Act - CIT held that the amount debited towards Electricity Duty u/s. 3(1) of the KSED Act being an exclusive levy on the assessee which is a State Government undertaking by the State Government is to be disallowed u/s. 40(a)(iib) - HELD THAT:- In the present case, the Assessing Officer had not made the disallowance u/s. 40(a)(iib) - Without enquiring, the AO accepted the assessee’s claim. The failure on the part of the AO to make necessary enquiry rendered the assessment order erroneous which also resulted in loss to the revenue.
PCIT had observed in his order that the electricity duty u/s. 3(1) of the KSED Act falls under the purview of section 40(a)(iib) of the Act and it is to be disallowed u/s. 40(a)(iib) - order of the PCIT cannot be held as erroneous. The PCIT’s approach was correct. PCIT exercised his power conferred u/s. 263 in setting aside the assessment. AO has not considered the issue relating to the application of section 40(a)(iib) and he had accepted the claim without applying his mind. Hence, the order of the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, as it involves huge amount of tax - PCIT is justified in invoking the provisions of section 263. - Decided against assessee.
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2019 (9) TMI 1398
Sanction of Scheme of Merger (by absorption) - Sections 230 to 232 of the Companies Act, 2013 - Dispensation with various meetings - HELD THAT:- The Transferor Company is also directed to serve notice upon Official Liquidator, pursuant to section 230(5) of the Companies Act, 2013 and as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Tribunal is appointing M/s. Dalal & Kala., Chartered Accountant, to assist the Official Liquidator to scrutinize the books of accounts of the said Transferor Company for the last 5 years and submit its representation/ report to the Tribunal. The aforesaid Company to pay fees of ₹50,000/- for this purpose. If no representation/ response is received by the Tribunal from Official Liquidator, Bombay within a period of thirty days from the date of receipt of such notice, it will be presumed that Official Liquidator has no representation/ objection to the proposed Scheme as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - The Applicant Companies are accordingly directed to serve notices along with the documents as mentioned.
The Applicant Companies to file affidavit of service of the directions given by the Tribunal in the Registry for service of notice to the regulatory authorities as stated above and do report to this Tribunal that the directions regarding the issue of notices have been duly complied with.
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2019 (9) TMI 1397
Direction to the ‘Resolution Professional’ to provide financial details of the ‘Corporate Debtor’ with respect to the hotel operation and necessary details with regard to the ‘valuation report’ - HELD THAT:- In view of the provisions of the ‘I&B Code’, it is expected that as far as the facts have been noticed by the ‘Committee of Creditors’, if no objection is there by the Appellant, he may bring the same to the notice of the Adjudicating Authority who in its turn can check the financial details of the ‘Corporate Debtor’ in respect of the hotel operations and valuation report.
Appeal disposed off.
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2019 (9) TMI 1396
Undisclosed income on a/c of alleged unexplained cash found during the course of search - search and seizure u/s 132 and 133A - HELD THAT:- The assessee explained the source of cash as belongs to M/s. Adventure Global Tour LLP and also produced the cash book of the said concern to show the availability of cash with the said LLP. Once there is no incriminating material to show that the cash of ₹ 2,59,140/- found at 203 Ratna Sagar, MSB Ka Rasta, Johari Bazar belongs to the assessee and the said premises was not the business premises of the assessee and the assessee has explained the source of cash belongs to M/s. Adventure Global Tour LLP whose business premises is situated at 203 Ratna Sagar, MSB Ka Rasta, Johari Bazar, then in the absence of any contrary fact or material, the said explanation of the assessee cannot be brushed aside.
Assessee has discharged its onus in explaining the source of cash and the AO even failed to discharge his preliminary onus to establish that the cash found at a different premises not belonging to the assessee, belongs to the assessee. Thus the addition made by the AO is deleted. - Decided in favour of assessee.
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2019 (9) TMI 1395
Refund of Service tax - rejection on the ground of unjust enrichment - Works Contract - construction services to various Departments of U.P. Government - Section 102(2) of FA - N/N. 6/2015-ST dated 01/03/2015 effective from 01/04/2015 - HELD THAT:- The provisions of Rule 102 were specifically introduced in the Finance Act for refund of the service tax so paid, which was actually paid on account of inadvertant withdrawing of exemption. The contracts with the U.P. Government were inclusive of all taxes, thus, not attracting the provisions of unjust enrichment.
There are no infirmity in the impugned order - appeal dismissed - decided against Revenue.
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2019 (9) TMI 1394
Penalty - service tax paid on being pointed out, before issuance of SCN, but penalty was not deposited - license fee income received from the parties - commission income from Kashmir Government Emporium - suppression of facts or not - HELD THAT:- As an admitted fact that an amount of ₹ 9,07,073/- was deposited by the appellant alongwith the interest vide GAR 7 challan dated 19th September, 2013. The show cause notice was issued on 23rd October, 2013. The payment thereof was made voluntarily by the appellant even before the issuance of show cause notice. In such circumstance, there appears no reason for imposition of penalty.
Though the adjudicating authorities below have formed an opinion about apparent suppression of facts on the part of the appellant, but it is an acknowledgement on part of the original adjudicating authority about the submission of the appellants since beginning that no service tax was received on either of the income which have been allegedly made liable to service tax and that the appellant was under bonafide impression to not to be liable to pay any service tax thereupon - the moment the shortcoming and liability was brought to the notice of the appellant, the same has been discharged even prior to issuance of show cause notice. Thus, this is not the case of suppression of facts.
Penalty set aside - the order appropriating the amount deposited by the appellant as a discharge of his liability towards impugned demand is hereby upheld - appeal allowed in part.
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2019 (9) TMI 1393
Legality of issuance of SCN - Section 73 of the Finance Act - Case of appellant is that the service tax amount, having been deposited by the appellant alongwith deposit of interest before the issuance of the show cause notice - HELD THAT:- The appellant is not disputing the confirmation of service tax which already stands deposited by them alongwith deposit of interest - In such a scenario, we fully agree with the appellant that there was no need to issue the show cause notice and the entire proceedings were deemed to have been concluded in terms of the provisions of Section 73.
Appeal allowed in part.
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2019 (9) TMI 1392
Allowability of deduction u/s 80IA(4)(i) - HELD THAT:- This issue has been adjudicated against the assessee and in favour of the Revenue by the order of this Bench of the Tribunal in WEST BENGAL HOUSING INFRASTRUCTURE DEVELOPMENT CORPORATION [2019 (6) TMI 921 - ITAT KOLKATA] wherein held no such details provided by the assessee before the AO in claiming the said project in New Town is an integral part of highway project. Therefore, in our opinion, the assessee is not entitled to claim deduction u/s 80IA.
Interest on Treasury Account - Sum deposited Treasury Account of the State Government - Correspondence between the Government of West Bengal and the assessee - HELD THAT:- The correspondence, which lead to the assessee investing in the Government Treasury, the terms and conditions under which such deposits/investments were made, have to be examined. The type of accounts being maintained, their numbers etc. have to be examined only on such detailed enquiry, in our view it can be concluded as to whether the deposits/investments in question is a non-interest bearing deposits/investments or not - set aside the issue to the file of the AO for fresh adjudication in accordance with law. AO shall issue necessary notices to the Director of Treasury, Directorate of Treasury and Accounts and thereafter he shall, after examining all the necessary correspondence adjudicate the matter afresh in accordance with law. In the result this ground is allowed for statistical purposes.
Taxability of interest income on fixed deposit - AO has brought to tax this amount on the ground that the assessee failed to credit the interest on F.Ds to the P&L account and has directly deducted the same from project cost - HELD THAT:- On a query from the Bench, both parties agreed that the issue may be restored to the file of the AO, with a direction to verify the claim of the assessee that the amount in question has already been offered to tax. The AO is directed to verify this claim and if it is found that the assessee has not offered this interest on F.Ds to tax in its return of income and accounts, then he is directed to bring the same to tax.
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2019 (9) TMI 1391
Refund of service tax - export of services - rejection on the ground time limitation - case is that the application for seeking refund is of 4th January, 2007, hence, this amount is beyond the requisite period of one year from the date of payment of service tax - HELD THAT:- The period of one year for the impugned application shall be w.e.f December 2005 to December2006. The period of claim herein is w.e.f July, 2005 to November, 2006. Hence, the claim which is beyond one year of the date of application for refund is for the period w.e.f. July, 2005 to November, 2005 which comes to ₹ 1,72,125/-. It is observed that while adjudicating the said show-cause notice the original adjudicating authority has in addition to rejecting the claim of ₹ 1,72,125/- has rejected the entire claim not only ₹ 6,89,015/- for the remaining period from December, 2005 to November, 2006, it has also rejected the claim of ₹ 2,17,081/- for the period December, 2006 to February, 2007 as was not even file on 4th January, 2007 but on 18th December, 2007.
Thus, the adjudicating authority has committed an error while holding the entire amount of claim i.e. ₹ 6,89,015/- as filed beyond one year. Apparently, the claim for an amount of ₹ 1,72,125/- for the period July, 2005 to November, 2005 is beyond one year from 04.01.2017 the date of filing of the said refund claim.
The period of limitation applicable is whether one year of two years? - HELD THAT:- The provision of section 11B of CEA specifies that the application for seeking such refund can be made to the Assistant Commissioner before expiry of one year from the relevant date. Second proviso to this section makes it clear that this limitation of one year shall not apply only to the case where such duty/tax and interest has been paid under protest - once the notification is silent about any time limit and the notification is flowing from the statute having the above provision, the limitation of one year as mentioned in the above provision shall be applicable to the said notification.
For the application as the one in question, since it is maintainable under Section 11-B of Central Excise Act, irrespective out of the benefit flowing from the notification No. 11/2005 dated 19.04.200, the period of one year from the relevant date shall be applicable to claim the refund of the tax paid qua export of service.
In the present case apparently and admittedly, the application to claim refund was filed on 4th January, 200, the relevant date. Hence, the claim w.e.f January, 2006 cannot be held to be barred by time. Accordingly, it is the claim only for the period prior January, 2006 i.e. of ₹ 1,72,125/- out of ₹ 6,89,015/- for the period of July, 2005 to December, 2005 which is beyond one year of the impugned application. Hence, the order-under-challenge to the extent of denying the refund of ₹ 1,72,125/- is sustainable.
Denial of refund of ₹ 2,17,081/- for the period December, 2006 to February, 2007 - HELD THAT:- It is an admitted fact that the appellant was issued only one show cause notice i.e. of 10.04.2008 with only one objection i.e. denial of refund of ₹ 1,72,125/- (as was filed on 18.12.2007) also absolutely beyond the scope of show cause notice. The para-2 of the show cause notice as quoted in previous para of this order is again relied upon for the purpose. It becomes clear that demand of ₹ 2,17,081/- is absolutely beyond the scope of SCN, hence the confirmation is also not sustainable & is liable to be set aside.
Export of services or not - HELD THAT:- Even the original adjudicating authority, after considering the invoices tendered by the appellant in respect of the services and agreements/contracts entered into by them with the foreign clients, has itself concluded that the services as provided by the appellants are the taxable services for the purposes Rule 3 of Export of Service Rules, 2005 is relevant.
Appeal allowed in part.
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2019 (9) TMI 1390
Recall of Order - operation of locker - wilful defiance of the order - Restraint from mortgaging or creating charge or lien or creating third party interest or in any way alienating, the movable or immovable properties owned by her, including jointly held properties and dealing with securities in any company - HELD THAT:- Admittedly, Ramesh C. Bawa has transferred ₹ 4.84 crores on December 3, 2018 to Ms. Aakansha Bawa. As per the information gathered from SFIO, it has been pointed out that Aakansha Bawa is not filing her income-tax returns and as per her bank statement, there is no other source of income other than the amount so transferred from R. C. Bawa - The Union of India is alleging that the lockers were operated in wilful defiance of the order of this Bench dated December 3, 2018 and there is direct link between Mrs. Asha Kiran Bawa and IFIN, as the valuables purchased from the proceeds of misfeasance, which were sought to be transferred/alienated from the locker of an ex-director of IFIN, against whom complaint before the Special Judge for committing fraud in IFIN is filed, and is under adjudication.
In the case in hand, undisputedly, the amount has been transferred from the account of Ramesh C. Bawa to the applicants account, and it is also on record that when the application was filed to freeze the accounts of R. C. Bawa, on the same date, i. e., on December 3, 2018 the amount worth ₹ 4.84 crores was transferred to the account of the applicant Ms. Aakansha Bawa, who is not even the income tax payee. It is also on record that amount of ₹ 27.67 crores has been transferred from the account of Ramesh C. Bawa to the account of the applicant Mrs. Asha Kiran Bawa, happens to be the wife of R. C. Bawa - It is also on record that the said amount which was received from the account of R. C. Bawa was further transferred to the account of the companies wherein the applicants are/were directors.
The plaintiff remains the dominus litis. Order 1, rule 10 of the CPC provides discretionary power to the court. The IL and FS/IFIN case is one of the instances wherein ₹ 91,000 crores have been siphoned off, and SFIO investigation is undergoing. Father of Ms. Akansha Bawa who has been the director of IFIN is in judicial custody, based on the report filed by SFIO, and it is also on record that amount received from R. C. Bawa has been transferred to the accounts of the applicants. Therefore, they are a necessary party to the case.
There is no justification for recalling the order passed by this Bench dated April 26, 2019 hence M. A. Nos. 2006 and 2007 of 2019 deserves to be rejected - Application dismissed.
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2019 (9) TMI 1389
Penalty u/s. 271G - assessee has entered into an international transactions with its AE and has failed to furnish documents or information as required u/s 92D(3) - main allegation of the revenue is that of non-furnishing of audited AE and non AE segmental as well as documents regarding choice of foreign entity as tested party - HELD THAT:- As noted that from the letter issued by revenue dated 07.09.2015 i.e. notice under section 92CA(2) read with section 92D(3) requiring information to be furnished in connection with the TP proceedings that a general notice is issued by the AO.
We noted that this issue has been considered in the case of CIT vs. Leory Somer & Controls (India) (P) Ltd. [2013 (9) TMI 761 - DELHI HIGH COURT] wherein it is held that when there is a general notice and no specific information of document which is required to be submitted by the assessee under section 92D(3) of the Act, is asked for, the penalty levied under section 271G cannot be sustained.
We noted that the assessee in the present case has made substantive compliance of the provisions of rule 10D, it is sufficient. The Legislature was conscious of this fact and, therefore, had specifically stipulated in section 92D(3) that the AO or the Commissioner (Appeals) may require a person to furnish any information or document in respect thereof and on failure of the said person to furnish the documentation within the specified time, penalty under section 271G can be imposed. Thus, for imposing penalty the Revenue must first mention the document and information, which was required to be furnished but was not furnished by the assessee within the specified time. The documentation or information should be one specified in rule 10D, which has been formulated in terms of section 92D(1).
Assessee has sufficiently complied with the requirement of Rule 10D(i) of the Rules and moreover the AO has not raised any specific issue which specific documents is not produced under section 92D(3), hence, we conclude that the assessee has furnished all the informations as asked for by the AO and unless and until a specific defect is pointed out in the submissions of documents, penalty under section 271G cannot be levied. We delete the penalty and allow the appeal of the assessee.
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2019 (9) TMI 1388
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Loan declared as NPA - financial creditor or not - applicability of time limitation.
Whether the applicant can be said to be financial creditor on the basis of the deed of assignment dated March 19, 2017? - HELD THAT:- The law requires that there must be legally assignment of debt. The deed of assignment is produced as annexure P3. It is prepared on stamp paper of ₹ 100. It has been registered duly before the Registrar of Assurance, Kolkata. Prima facie, we hold that it is legal and valid deed of assignment of debt. If, at all, it is on insufficient stamp paper, then law requires that the deficiency of paying stamp can be recovered with penalty. The deed cannot be said to be illegal thereby - the applicant herein is the financial creditor within the meaning of section 5(7) of the IBC - answered in affirmative.
Whether the debt is time-barred? - HELD THAT:- It was expected from the financial creditor and earlier to that by the bank to file proceeding against the corporate debtor within three years from the date on which the account of the corporate debtor became a NPA. In this case the account declared to be a NPA on March 31, 2014 proceeding is filed on October 31, 2018 - From the perusal of those financial papers of the corporate debtor, it is seen that corporate debtor noted that they have to pay the debt of United Bank of India. Their account is declared as a NPA. In short, in the year 2016, the corporate debtor in its balance-sheet acknowledged the debt to be payable by them which is claimed herein by the financial creditor. This acknowledgment of debt in its balance-sheet by the corporate debtor in the year 2016 has brought the claim of financial creditor within period of limitation. It is filed well within period of limitation. The debt is not time-barred - Answered in negative.
There is no dispute that the corporate debtor is liable to pay debt more than ₹ 21 crores. It is also not in dispute that the corporate debtor has committed default in paying the debt. By virtue of corporate debtor's admission about the debt in its balance-sheet for the year 2016, this proceeding appears to have been filed within period of limitation - the application is defect-free - application admitted - moratorium declared.
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2019 (9) TMI 1387
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - applicability of time limitation - HELD THAT:- As per the particulars of Financial Debt provided in Part-IV of the Application and Para -11 of the rejoinder submitted by the Applicant Corporation Bank, Account of the Respondent No. 1 was classified as non-performing asset on 23.05.2014 as per the prudential norms of the Reserve Bank of India. Further, the Applicant Corporation Bank has filed the present application on 05.02.2019.
Hence, the facts which are material in respect of the Limitation for maintainability of the application need to be considered first. The date of default as averred by the Petitioner in the Part-IV of the application is 23.05.2014 - That the Petitioner has placed two Letters dated 08.09.2015 showing 'Acknowledgement of Debt/ Liability by the Borrowers' made by the Respondent. Even if one takes into account the abovementioned acknowledgement letters, the limitation gets extended till 07.09.2018 only. However, the Petition in the instant case by the Financial Creditor is filed only on 05.02.2019. Further, the Respondent Company has raised a specific objection in its reply regarding maintainability of the application on the ground of limitation. The Petitioner has failed to rebut the objection even in its rejoinder.
This Bench is of the view that the Petition has not been filed within the Limitation period - the petition fails on the ground of limitation.
Petition dismissed.
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2019 (9) TMI 1386
Maintainability of application - Corporate Debtor failed to make repayment of its debt - mortgage of property - applicability of time limitation for mortgage - HELD THAT:- It is evident that even if a debt is disputed, if the amount is more than Rupees One Lakh, the application under Section 7 is maintainable. What is the exact amount of claim, that is only considered at the stage of the 'Corporate Insolvency Resolution Process', when the 'Interim Resolution Professional' after collating the claims, including the claim of the Respondent, may ascertain what amount is payable to the Respondent.
While condoning the delay of 12 days in preferring the appeal, the appeal is hereby disposed of
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