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Showing 381 to 400 of 1191 Records
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2011 (3) TMI 1458
Winding up - Overriding preferential payments - Whether secured creditor, while selling and disposing of and transferring secured assets by taking recourse to Securitisation Act, is obliged to seek prior approval or permission of company court in case secured assets belong to a company-in-liquidation - Whether section 529A is attracted only in event of winding up and particularly while determining proof and ranking of claims under Chapter V entitled ‘provisions applicable to every mode of winding up’ and only effect of provisions particularly sections 529A and 530 of Companies Act is that sale will have to abide by provisos to section 13(9) of Securitisation Act which make a specific reference to these provisions of Companies Act, 1956 – Held that:- section 529A is attracted only in the event of winding up and particularly while determining proof and ranking of claims under chapter V entitled "provisions applicable to every mode of winding up". sale conducted by the respondent No. 2 ARCIL cannot be said to be void. Once, the sale conducted by the ARCIL is in terms of Securitisation Act, then, bearing in mind the object and purpose sought to be achieved by the said Act and it being latter act and also a special Statute, there was no necessity of taking prior permission or leave of this Court before auctioning and selling the property. section 13(9) have been inserted to cover cases of company in liquidation, whose assets might be secured with secured creditors. In that event, the right exercised by the secured creditors under the Securitisation Act should not ignore the claims of workmen and that is the sole object in making reference to sections 529 and 529A in the subject provisos. company application fails and it is accordingly dismissed. respondent No. 2 ARCIL will have to abide by the provisos to section 13(9) of the Securitisation Act and remit the workmen’s dues in terms thereof by giving an appropriate undertaking to the official liquidator. The liquidator shall have the power to call upon ARCIL to abide by it and remit the dues as quantified by him in terms of the applicable proviso.
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2011 (3) TMI 1457
Winding up - petitioner-company executed a Stock Purchase and Sale Agreement with M/s. Newco Prague, s.r.o. (‘Purchaser’) for sale of 100 per cent equity interest - respondent, a company incorporated under the Indian Companies Act, 1956 and registered with the Registrar of Companies, Delhi executed a Guaranty Declaration dated 15-3-2007, whereunder it assumed the duty to pay to petitioner the unpaid instalments in accordance with the Agreement in the event of default by the Purchaser - However, purchaser did not make payment and petitioner sent demand notice to guarantor, i.e., respondent - Subsequently, petitioner filed winding up petition against respondent – Held that:- liabilities of the surety is discharged because of the ‘consideration given’ by the firm to the mills in the sense of the postponement of action by the firm against the mills. According to the petitioner, the financial position of the mills is none too good and it will be impossible for them to proceed against the mills. There can be no doubt that the firm is entitled to ignore the principal debtor and seek payment from the surety and it is not open to the surety to ask the firm to first exhaust his remedy against the firm and then come to him. respondent owes a debt to the petitioner which it has defaulted in paying. Moreover, the defence set up by respondent is a moonshine and a sham. petitioner’s application allowed
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2011 (3) TMI 1456
Default in payment of hire charges – allegation of cheating - criminal suit - It is alleged that there was default in payment of hire charges and the complainant company invoked the arbitration clause and obtained arbitration award. But while executing the award, they found that the machinery was hypothecated with the IDBI which had the first charge over the machinery. The allegation is that petitioners Nos. 1 to 3 have fraudulently represented and deceived the company that there was no charge over the machinery and the fourth petitioner issued a no lien certificate.
Held that:- Whether the complainant had knowledge of the previous charge and whether the petitioner had fraudulent intention for cheating are the matters for trial. In such view of the matter, this court finds no reason, much less valid reason to interfere with the proceedings at this stage.
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2011 (3) TMI 1455
Whether Proviso III to section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 be declared, unconstitutional, ultra vires the Constitution of India and/or null and void.
Whether Provisos II & III to section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 be declared unconstitutional, ultra vires the Constitution of India and/or null and void.
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2011 (3) TMI 1454
Issues:
- Liability of the applicant for outstanding dues of respondent No. 2
- Removal of charge in revenue records
- Priority of dues in liquidation process
Liability of the Applicant for Outstanding Dues:
The applicant sought a declaration that they are not liable to pay the outstanding dues of respondent No. 2 for assets purchased from a company in liquidation. The applicant, as the auction purchaser, had deposited the full purchase amount and received possession of the assets. The applicant argued that as per the tender document, they were not responsible for pre-liquidation dues, which should be settled by the Official Liquidator under specific sections of the Companies Act, 1956. Legal precedents were cited to support the applicant's position, emphasizing that the auction purchaser should not bear liabilities from the pre-liquidation period. The Official Liquidator also supported the applicant's stance, stating that respondent No. 2's claims would be handled according to the Companies Act.
Removal of Charge in Revenue Records:
The applicant highlighted that respondent No. 2 had created a charge on the purchased properties, affecting their ownership rights. Despite the applicant's request to the Official Liquidator to remove this charge, no action was taken. The Court acknowledged the applicant's concerns and directed the removal of any attachments, charges, or liens related to pre-liquidation dues from the revenue records. Furthermore, the Court instructed the recording of the applicant's name in the revenue records for the purchased properties.
Priority of Dues in Liquidation Process:
The Court analyzed the terms of the tender document and relevant provisions of the Companies Act, particularly section 530, to determine the priority of dues in the liquidation process. It was established that the auction purchaser, in this case, the applicant, should not be held liable for pre-liquidation debts. Citing previous judgments, the Court affirmed that the auction purchaser is not obligated to settle such dues and that respondent No. 2 could not claim priority for their outstanding amounts. Consequently, the Court ordered the removal of any encumbrances on the assets sold to the auction purchaser, emphasizing the applicant's exemption from pre-liquidation liabilities.
In conclusion, the Court allowed the Company Application, ruling in favor of the applicant and directing the removal of charges and liens from the revenue records, affirming the applicant's non-liability for pre-liquidation dues, and ensuring the applicant's ownership rights over the purchased assets.
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2011 (3) TMI 1453
Orders dated 17-10-2008 passed by the Official Liquidator and the orders dated 12-4-2005 passed by Mr. G. P. Thareja, who was appointed on 22-7-2004 by this court to examine and process the claims of alleged plot holders challenged
Held that:- As the winding up proceedings had commenced prior to the execution of the sale deeds in the present case, the same are void.The communication dated October 17, 2008 issued by the Official Liquidator and the orders dated April 12, 2005 passed by the Thareja committee are set aside with a direction to the Official Liquidator to once again determine as to what amount has been deposited/paid by the appellants to the respondent-company and after determining the said amount, pass an order directing refund of the same along with simple interest at 4 per cent per annum from the date of deposit. Needless to say, the Official Liquidator shall determine the said amount after giving an opportunity of hearing to the appellants. The Official Liquidator is also directed to pass a reasoned order within a period of four months from today.
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2011 (3) TMI 1452
Compensation – accidental insurance – ownership of vehicle - Motor Accident Claims Tribunal, hold that the first respondent, being the owner of the vehicle that was insured with the appellant, is not entitled to compensation for the injuries suffered, while he travelled in the vehicle - first respondent is a doctor by profession, the second respondent herein, is a company registered under the Companies Act, 1956 - first respondent is the managing director of the second respondent-company. The second respondent owned a Lancer car, which involved in the accident and the same was insured with the appellant – Held that:- first respondent-claimant is not the owner of the car and that the appellant-insurance company is liable to pay compensation for the injuries suffered to the first respondent, while he travelled as an occupant of the car.
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2011 (3) TMI 1451
orders of the AAIFR and BIFR - the dues of State Bank of India (SBI) and Bank of India (BOI), who had taken action under section 13(4) of SARFAESI Act were more than 75 per cent of the total secured debt of the company - reference under section 15(1) of SICA on the basis of modified balance sheet.
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2011 (3) TMI 1450
MAT - Rectification of mistake - Deduction of prior period items from book profit - section 115JA - Assessing Officer noticed that the profit and loss account prepared by the assessee under Parts II and III of Schedule VI to the Companies Act disclosed a profit of Rs. 1,01,37,664, wherefrom the assessee had made a deduction of Rs. 23,29,726 towards prior period expenses which is impermissible under the statute and this mistake was rectified in proceedings initiated under section 154 of the Act by disallowing deduction claimed by the assessee from the profit available under the profit and loss account - Held that:- Assessing Officer has to start assessment by adopting the profit available in the profit and loss account prepared in terms of Parts II and III of Schedule VI to the Companies Act. - If the assessee has made a claim of deduction from this profit not enumerated in clauses (i) to (ix) covered by the Explanation to section 115JA, the assessment so completed based on the profit taken from the profit and loss appropriation account submitted by the assessee happens to be an apparent mistake which could be rectified in proceedings to be initiated under section 154, appeal dismissed
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2011 (3) TMI 1449
Classification - Whether the margarine is classified at Schedule C, entry 100 or Schedule C, entry 107(11)(F) liable at four per cent of tax or entry El and taxable at 12.5 per cent from February 1, 2008 under the Maharashtra Value Added Tax Act, 2002 - Held that:- margarine produced by other manufacturers, viz., Kamani or Godrej is taxable at four per cent so under principle of parity margarine which is produced by the respondents is rightly made taxable at four per cent by the Tribunal by its judgment - margarine produced by the respondents was classified in Schedule C, entry 100 as vanaspati and was taxable at four per cent till the decision of the A. O. Since long period, view taken by the Tribunal holds the field, in the case of Merind Ltd, that once a particular view is taken by the authority, it should not be disturbed - view taken by the Tribunal that margarine is vanaspati and it is to be classified under Schedule C, entry 100 and taxable at four per cent is a legal and correct view and cannot be faulted out.
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2011 (3) TMI 1448
Classification under Maharashtra Value Added Tax Act of 2002 (MVAT) - Whether the product, nutralite table margarine, manufactured by the respondent-assessee is a vegetable oil covered under Schedule C, entry 100 or Schedule C, entry 102 or not - palm oil is subjected to the process of emulsification and the resultant product that emerges is nutralite table margarine - table margarine is considered to be a distinct marketable commodity under the Central Excise Act – Held that:- product is exempted from payment of Central excise duty would not mean that the nutralite table margarine is not manufactured by the appellant, Vegetable oil falling under heading Schedule C, entry 100 when subjected to the process of hydrogenation, the resultant product is classified under heading Schedule C, entry 102 as hydrogenated vegetable oil. Hydrogenated vegetable oil when subjected to the process of emulsification, margarine is obtained. The fact that the appellant instead of using hydrogenated vegetable oil has used palm oil as the basic ingredient in manufacturing nutralite table margarine, it cannot be said that the product manufactured by the appellant is a vegetable oil covered under Schedule C, entry 100 or hydrogenated vegetable oil covered under heading Schedule C, entry 102.
Nutralite table margarine manufactured by the appellant is classified under the residuary entry under heading E1 and not under heading Schedule C, entry 100 as held by the MSTT.
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2011 (3) TMI 1447
Disallowance of excess interest tax collected by the assessee - assessee collected excess interest tax which was not remitted to the Government as the same was excess collection – Held that:- assessee has not produced any material evidence towards payments of any amount to the corpus fund created by the Government in terms of the decision of the Supreme Court or evidence for payment to the Government of India, which of course is possible only through forfeiture of excess collection of tax under the Interest Tax Act, amount is retained by the assessee over which nobody has a claim, it has to be treated as income, appeal on this ground is accordingly dismissed.
Disallowance of depreciation on the value of machinery leased out - depreciation claimed is on the entire value of machinery that is, Rs. 1,00,57,225/- on the ground that the item leased out is air pollution control equipment which is entitled for 100% depreciation – Held that:- when the lessor claims depreciation in respect of an item of machinery with reference to its use which is only made by the lessee, necessarily the lessee has to put to use the machinery for the purposes stated in the depreciation schedule to entitle it for the rate of depreciation provided therein. It is not a case of assessee claiming depreciation on an item of machinery but the depreciation claimed is in respect of pollution control equipment which identify at least the equipments has to assume at the end of the previous year. Therefore, in our view, at least assembling and commissioning of the system to get the identity with reference to the use of the machinery by the lessee is a mandatory requirement for eligibility for depreciation claimed by the lessor, appeal is dismissed
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2011 (3) TMI 1446
Export from SEZ area - Over invoicing - claim of drawback or DEPB - The goods were seized by the customs officers on the ground that the same were of very poor quality, cartons used were also of very inferior quality and did not bear any packing details and numbers were written by some semi illiterate person and value when compared with quality appeared to be disproportionately higher. - held that:- at the time of initiation of transaction itself, appellants had planned to claim DEPB or drawback whichever is more beneficial to them and with that object only, the whole operation was planned. The fact that FOB value was realized does not take away or does not help the appellants to rebut the contention of the department that value was inflated by ST while supplying the garments to SCPL resulting in inflation of value by SCPL. - value was wrongly declared is correct and accordingly goods were liable to confiscation.
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2011 (3) TMI 1445
Import of regrind polycarbonate - payment of demurrage charges- requirement of licence - held that:- since the petitioners have succeeded before the Tribunal and the confiscation as ordered by the Commissioner of Customs has been set aside, the Department must take on the liability of meeting the demurrage charges of the custodian. The petitioner company would, therefore, be entitled to reimbursement of the warehousing charges paid by it on account of wrongful confiscation by the customs authorities. As observed in the aforesaid decisions, to hold otherwise would be unjust to the petitioners who have met with success in their litigations with the Department.
The Department shall be liable to bear the warehousing charges amounting to Rs. 93,622/- which has been paid by the petitioners and as such, the petitioners would be entitled to reimbursement of the same.
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2011 (3) TMI 1444
Revision petitions – modification in penalty – Kerala Value Added Tax Act, 2003 - penalty for violations by dealers - Held that:- finding of the Tribunal that there is violation of section 67 is correct, dealer has remitted tax and interest on receipt of assessment order. Further the State has not so far challenged the order of the Tribunal converting penalty levied under section 22(7) to one under section 67, State directed to treat the matter as concluded by accepting the order of the Tribunal with regard to penalty as well, Revision petitions are dismissed
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2011 (3) TMI 1443
Refund of excess excise duty paid - bar of limitation - unjust enrichment - assessee offered discounts to their customers - refund claim made on 29-11-2001 was in-time. Because the Department pointed out certain defects and called for certain documents, instead of complying with the said request the assessee withdrew the claim on 20-7-2002 with an intention to file a fresh claim with all the necessary documents. - Held that:- when a fresh claim is made on 7-3-2002 the limitation is to be computed from that day. If limitation is to be computed from that day the claim for refund from 1-1-2002 up-to 6-3-2002 was clearly barred by time. However, the claim for refund from 7-3-2002 up-to 31-3-2002 was well within the time. Therefore though the authorities justified in holding that claim is barred by time to the extent of rejecting the claim from 7-3-2001 to 31-3-2001, the said order is incorrect. To that extent, the order passed by the authorities requires to be modified.
Refund - assessee levied and collected excise duty on a higher rate. Depending on the performance of customers/dealers he has passed on the benefit of deduction in the price of the goods. Corresponding excise duty payable is also reduced. He has raised the credit notes and passed on the said benefit to the customer – Held that:- burden of higher excise duty which he has paid for is not passed on to the customers, assessee entitled to refund of excess demand
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2011 (3) TMI 1442
Unexplained cash credit in the form of WIP (work-in-progress) - amount credited to the current capital account of the partner of M/s. S. K. Banerjee and debited to different accounts - Held that:- Identity of the party is well established due to the fact that one partner of the old firm is common with the new firm, i.e., the J. V. Firm and that the amount is credited to his account. The authorities have concluded on the facts that there is only a transfer of WIP from the earlier firm to the assessee and that there is no reason to either doubt the genuineness of the transaction or the capacity. Thus no reason to disagree with the findings of fact which are based on evidence.
CIT rightly deleted the addition made on ground that assessee has successfully established the source of the credit entry in the partners' capital account - Decided in favor of assessee
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2011 (3) TMI 1441
Addition on account of dividend u/s 2(22)(e) of the Act - It was mentioned that the assessee was not able to prove the bona-fides of his claim regarding carrying on of real estate business and the audited accounts had shown the amount as unsecured loans – Held that:-monies were advanced in pursuance of the memorandum of agreement for developing plots of land into commercial buildings, one of the objects of the company. The plots belonged to the assessee which were to be handed over to the company for construction as per approved plans. It was the business of the company to undertake real estate construction business. In a way, the assessee became a partner with the company to carry on real estate business, during the course of which the advances were received, advances cannot be deemed to be dividend, appeal is dismissed
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2011 (3) TMI 1440
Dis-allowance of interest on borrowed funds u/s. 14A – assessee contended that majority of its investment if tax free securities were made before F.Y.97-98, thus amount invested in tax free securities are not from borrowed funds - Held that:- Assessee had demonstrated that it has utilized its own funds for the purpose of making investment in shares, etc. from which tax free income were earned. It is also not in dispute that the interest bearing borrowed funds were utilized for its own business purposes from which taxable income were earned by the assessee. CIT(Appeals) and Tribunal both on facts found that the assessee did not invest borrowed fund for earning interest free income, applying provision of Section 14A for taxing such interest was not justified - Decided in favor of assessee
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2011 (3) TMI 1439
TDS u/s 195 - Indirect acquisition of 51% shares in Sesa Goa Ltd. without deduction of tax at source - held that:- What is under challenge is only the show cause notice issued as per section 195 of the Act. It is for the petitioner to urge all contentions before the respondent authority pursuant to such show cause notice issued to contend that the purchase of 51% shares does not amount to transfer of capital asset. Though the petitioner contends that the agreement entered into is produced, that itself is not sufficient to know as to the nature of transaction between Finsider International Company Ltd. and Sesa Goa Ltd. which is an Indian Company. - Petitioner to appear before the respondent authority.
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9911796707
