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Showing 81 to 100 of 1586 Records
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2019 (10) TMI 1508 - DELHI HIGH COURT
Income deemed to accrue or arise in India - Taxability of amount received - PE in India - Indo-China DTAA - whether payments made by the assessee’s customers to it constituted royalty, in respect of software supplied? - HELD THAT:- As decided in ZTE Corporation [2017 (1) TMI 1338 - DELHI HIGH COURT] The supplies made (of the software) enabled the use of the hardware sold. It was not disputed that without the software, hardware use was not possible. The mere fact that separate invoicing was done for purchase and other transactions did not imply that it was royalty payment. In such cases, the nomenclature (of license or some other fee) is indeterminate of the true nature. Nor is the circumstance that updates of the software are routinely given to the assessee’s customers. These facts do not detract from the nature of the transaction, which was supply of software, in the nature of articles or goods. This court is also not persuaded with the submission that the payments, if not royalty, amounted to payments for the use of machinery or equipment. Such a submission was never advanced before any of the lower tax authorities; moreover, even in Ericson [2011 (12) TMI 91 - DELHI HIGH COURT] a similar provision existed in the DTAA between India and Sweden.
Interest payments and Section 234B is concerned, the court is of the opinion that the issue is covered by GE Packaging (2015 (1) TMI 1168 - DELHI HIGH COURT ). This question of law too is answered against the revenue, and in favour of the assessee.
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2019 (10) TMI 1507 - ITAT CHENNAI
TP Adjustment - overdue receivables by determining the interest on such receivables - Whether interest on delayed realization of receivables is a separate international transaction and, therefore, requires separate benchmarking? - DR submitted that the interest on delayed realization of receivables is a separate international transaction and, therefore, requires separate benchmarking. It has nothing to do with the operations of the assessee company being with the debt free funds only - HELD THAT:- Revenue has made out a case in its favour for this assessment year, i.e., 2013-14. Following the above decision [2017 (5) TMI 965 - ITAT DELHI] we hold that the interest on delayed realization of receivables is a separate international transaction and, therefore, requires separate benchmarking. It has nothing to do with the operations of the assessee company being with the debt free funds alone. Appeal of the Revenue is allowed.
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2019 (10) TMI 1506 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficient funds - acquittal of accused - contention of the appellant/complainant in the appeal is that the Court below has committed an error in not appreciating the evidence in a proper perspective and erroneously has come to the conclusion that he has not proved the transaction - principles of natural justice - HELD THAT:- It is important to note that, after the cheque was bounced, the complainant has given notice to the accused in terms of Ex.P3 and the same was served on the accused. The postal acknowledgment Ex.P4 confirms that notice was served on the accused and he did not choose to give any reply. But the contention of the accused throughout in his cross-examination is that, he did not issue the cheque Ex.P1 and the signature available in Ex.P1 is forged and created by the complainant. If really, the accused did not made any transaction with the complainant, he would have given reply to the notice, Ex.P3 immediately when he received the same. In spite of service of notice, he did not give any reply. If no such transaction has taken place between the complainant, he would have raised the defence that said cheque not belongs to him and the same has not been done.
The accused has not given any reply to the notice and also in the cross- examination, he categorically admits that the cheque has bounced on account of no sufficient fund in the bank account of the accused. Mere non-producing of the document before the Court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The accused ought to have rebutted the contention of the complainant by producing cogent evidence before the Court and mere denial is not enough. Hence, the Court below ought to have drawn the presumption against the accused that he did not give any reply to the legal notice, though admitted the returning of cheque. The very approach of the Trial Court is erroneous.
In the absence of rebuttal evidence under Section 138 of the Negotiable Instruments Act, the Trial Court ought to have convicted the accused for the offence punishable under Section 138 of Negotiable Instrument Act - the Court below has not appreciated the evidence available on record in a proper perspective. The Court below has failed to take note of the fact that it is not the case of the accused that he did not receive any legal notice. But his explanation in the evidence is that on the very same day, he went and told the complainant that he has not issued such cheque. Hence, the very defence cannot be accepted.
The accused cannot blow hot and cold in one breath that there was no transaction between the accused and complainant and in another breath that the promissory note which was given earlier by him was misused by the complainant. All these material evidence has not been considered by the Trial Court while acquitting the accused - it is a fit case to reverse the findings of the Trial Court and set aside the judgment of acquittal.
Appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1505 - CESTAT MUMBAI
Seeking out of turn disposal of appeal - seeking provisional release of seized imported goods - HELD THAT:- The records do contain evidence of the deposit of ₹ 97,00,000/- and that the imposition of condition of further deposit, in the light of the deposited amount, appears to have been ordered despite that.
The matter is remanded back to the adjudicating authority for reconsideration of the terms of the provisional release after taking the submission of the importer on record - appeal allowed by way of remand.
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2019 (10) TMI 1504 - ITAT AHMEDABAD
Maintainability of appeal - low tax effect - HELD THAT:- Appeal filed by the Revenue is hit by recently issued CBDT Circular No. 17 of 2019 dated 08/08/2019 revising the previous thresholds pertaining to tax effects. As per aforesaid Circular, all pending appeals filed by Revenue are liable to be dismissed as a measure for reducing litigation where the tax effect does not exceed the prescribed monetary limit which is now revised at ₹ 50 Lakhs. In the instant case, the tax effect on the disputed issues raised by the Revenue is stated to be not exceeding ₹ 50 lakhs and therefore appeal of the Revenue is required to be dismissed in limine.
Revenue fairly admitted the applicability of the CBDT Circular No. 17 of 2019. Accordingly, appeal of the Revenue is dismissed as not maintainable.
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2019 (10) TMI 1503 - NATIONAL COMPANY LAW TRIBUNAL AMARAVATHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The only defence taken by the Respondent is that the debt being barred by limitation an application under section 7 of the Code could not be maintained. The ‘debt’ defined under section 3(11) of the Code means, a liability or obligation in respect of the claim which is due from any person and includes a financial debt. ‘Default’ defined under section 3 (12) of the Code means, non payment of debt when whole or any part or instalment of the debt has become due and payable and is not paid by the Corporate Debtor - There is no quarrel that the account of the Respondent had been declared NPA. The Application before the DRT-I, Hyderabad was within time. The DRT-I, Hyderabad by order dated 06.11.2017 allowed the Application and ordered recovery of the debt with interest, pendent lite and future, at the rate of 18% per annum.
Admittedly the Respondent had committed default in payment of the debt. In view of the orders of the DRT-I, Hyderabad the debt became ‘due and payable’ subsequent to 06.11.2017. Therefore, the defence contention that the debt was time barred cannot be accepted. The issue is answered in the negative.
In an application under Section 7 of the Code the reason for the inability of the Respondent in paying off the debt is not required to be looked into by the Adjudicating Authority. What is required to be seen is the default. In this case the default has been satisfactorily proved. Thus the petition needs to be admitted - petition admitted - moratorium declared.
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2019 (10) TMI 1502 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Operational mis-management - red entities - Section 241(2) of the Companies Act, 2013 - HELD THAT:- The two Companies namely ‘GIMCO’ and ‘Sealand Ports’ are also the group companies of the ‘Infrastructure Leasing and Financial Services Ltd.’ and those entities have been marked as red entities - the Applicant is allowed to bring the aforesaid fact to the notice of the concerned Board of Directors who are considering the same. It will also be open to them to ask for interim stay from the Board of Directors to enable the Appellant for better proposal to raise more amount than the amount which can be raised on sale/transfer - application disposed off.
Seeking direction to ‘Infrastructure Leasing and Financial Services Ltd.’ to call the Applicant to the meeting of the ‘Committee of Creditors’ to discuss the deliberation and resolution of ‘CNTL’ - HELD THAT:- If the Appellant ‘SREI Infrastructure Finance Ltd.’ has been accepted as ‘Financial Creditor’ or secured creditor, it may bring the same to the notice of the Board of Directors who may consider the same and decide as to whether their information is required for deliberation with regard to resolution of ‘CNTL’. If such application is filed, the Board of Directors will pass appropriate order on the same in accordance with law and if it necessary, to take up the matter with the Hon’ble Justice (Retd.) Mr. D.K. Jain who is supervising the matter - Application disposed off.
Termination of Concession Agreement between NHAI and Fagne Songadh Expressway Limited which was reached for execution of Fagne Songadh Expressway Limited - HELD THAT:- In the present case as the matter is being looked into by the Board of Directors and Committee constituted for individual group companies including two Expressway Ltd. including ‘Fagne Songadh Expressway Limited’, we are not inclined to deliberate on the issue, however, we are giving liberty to the Appellant to bring the facts to the notice of Board of Directors of ‘ILFS’ and Committee if constituted that it has already filed the ‘Resolution Plan’ which is viable and feasible and for the said purpose, it is desirable to continue with the ‘Concession Agreement’ - Application disposed off.
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2019 (10) TMI 1501 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Operational mis-management - takeover of company - Section 241(2) of the Companies Act, 2013 - HELD THAT:- The two Companies namely 'GIMCO' and 'Sealand Ports' are also the group companies of the 'Infrastructure Leasing and Financial Services Ltd.' and those entities have been marked as red entities. In the circumstances, the Applicant is allowed to bring the aforesaid fact to the notice of the concerned Board of Directors who are considering the same. It will also be open to them to ask for interim stay from the Board of Directors to enable the Appellant for better proposal to raise more amount than the amount which can be raised on sale/transfer.
Termination of Concession Agreement between NHAI and Fagne Songadh Expressway Limited which was reached for execution of Fagne Songadh Expressway Limited. - HELD THAT:- In the present case as the matter is being looked into by the Board of Directors and Committee constituted for individual group companies including two Expressway Ltd. including 'Fagne Songadh Expressway Limited', we are not inclined to deliberate on the issue, however, we are giving liberty to the Appellant to bring the facts to the notice of Board of Directors of 'ILFS' and Committee if constituted that it has already filed the 'Resolution Plan' which is viable and feasible and for the said purpose, it is desirable to continue with the 'Concession Agreement'.
Application disposed off.
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2019 (10) TMI 1500 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking permission to continue the CIR Process and permit him to make public announcement afresh - time period of the earlier announcement has got lapsed due to the stay order issued by the Hon'ble High Court of Madras - HELD THAT:- Since the stay order dated 04.05.2017 issued by the Hon'ble High Court of Madras has been vacated, the Order dated 21.04.2017 passed by this Adjudicating Authority gets revived. Therefore, the Interim Resolution Professional is directed to continue the CIR Process against the Corporate Debtor by causing fresh Public Announcements as per Regulation 6 (1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Debtor) Regulations, 2016, inviting the claims from the creditors, as the earlier Public Announcements has got lapsed due to the reason stated above, and to verify the claims of the creditors in consonance with the provisions of I&B Code, 2016 and IBBI (CIRP) Regulations, 2016.
Application disposed off.
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2019 (10) TMI 1499 - ITAT MUMBAI
TP Adjustment - Selection of MAM - rejection of Transactional Net Margin Method (TNMM) as the most appropriate method - rejection of comparables selected while benchmarking the transaction relating to import of finished goods from the Associated Enterprises (AE) - HELD THAT:- We do not discount the proposition that in case of distribution/resale of goods imported from A.E., RPM could be a proper method to benchmark the ALP, however, when both the assessee as well as the Transfer Pricing Officer admit that sufficient information relating to gross margin in uncontrolled transaction is not available, no useful purpose would be served in restoring the issue to the Assessing Officer for fresh benchmarking under RPM.
In view of the decision of the Hon'ble Jurisdictional High Court in Audco India Ltd. [2019 (5) TMI 694 - BOMBAY HIGH COURT] the contention of the Revenue that learned Commissioner (Appeals) having accepted RPM as the most appropriate method should have undertaken a fresh benchmarking under RPM cannot be accepted. In such circumstances, when no other method is applicable, as a method of last resort, TNMM has to be applied as most appropriate method. It is further noticed, in subsequent assessment years, not only the assessee has benchmarked the import of finished goods from the AE by applying TNMM, but the Transfer Pricing Officer has also accepted it as the most appropriate method. Even the very same comparables, as selected in the impugned assessment year, have been accepted as good comparables in the subsequent assessment years. For the aforesaid reasons, we do not feel the necessity to restore the issue to the Assessing Officer/Transfer Pricing Officer for fresh adjudication.
Transfer pricing adjustment in respect of advertisement, marketing, promotion (AMP) expenditure - HELD THAT:- Undisputedly, the assessee is a distributor of finished products, imported from the AE. The assessee sells these products to third parties in India. The entire AMP expenditure incurred by the assessee was spent in India and have been paid to third parties. No material has been brought on record by the Departmental Authorities to even remotely suggest that there is an agreement or arrangement between the assessee and its AE to incur AMP expenditure for promoting the brand of the AE. That being the case, the expenditure incurred by the assessee on AMP would not come within the purview of international transaction as per section 92B of the Act. Pertinently, identical issue arising in assessee’s own case came up for consideration before the Tribunal in assessment year 2010–11 held that incurring of AMP expenditure does not come within the purview of international transaction.
Transfer pricing adjustment on account of direct sales made by the AE to third parties in India - HELD THAT:- Addition on account of commission on direct sales made by the AE to third customer in India was made on notional basis. Notably, identical dispute arising in assessee’s own case for the assessment year 2002–03 (supra), came up for consideration before the Tribunal and while deciding the issue, the Tribunal held that no such addition on account of notional commission can be made without using any prescribed method. Accordingly, the Tribunal restored the issue back to the Assessing Officer / Transfer Pricing Officer to verify whether there was any involvement of the assessee in the direct sales made by the AE in India. Similar view was expressed by the Tribunal while deciding the issue in assessment years 2003–04 and 2004–05. Following the consistent view of the Tribunal cited supra, we restore the issue to the Assessing Officer for fresh adjudication in terms with the directions of the tribunal in the preceding assessment years as referred to above. Grounds are allowed for statistical purposes.
Disallowance being expenditure incurred on gift articles - HELD THAT:- There is no dispute with regard to the factual aspect involved in the issue. It is the claim of the assessee that the expenditure incurred towards gift items given to the customers is wholly and exclusively for the purpose of assessee’s business. It is also evident, Commissioner (Appeals) as well as the AO have disallowed the expenditure following the decision taken by the Departmental Authorities in the past years. Notably, while deciding identical issue in assessment years 2003–04 and 2004–05, in the orders referred to above, the Co–ordinate Bench has held that the expenditure incurred on gift items being wholly and exclusively for the purpose of assessee’s business, is an allowable expenditure. Following the consistent view of the Tribunal in assessee’s own case, we delete the addition made by the Assessing Officer. These grounds are allowed.
Disallowance of expenditure incurred in respect of foreign trip of doctors - HELD THAT:- Following the consistent view of the Tribunal in assessee’s own case as well as the other decisions cited before us, we delete the addition made by the Assessing Officer. Ground raised is allowed.
Disallowance of depreciation on goodwill - assessee claimed depreciation @ 25% on the written down value (WDV) of goodwill by treating it as an intangible asset - Denial of assessee’s claim by holding that goodwill is not an intangible asset under section 32(1)(ii) - HELD THAT:- The issue relating to depreciation on goodwill by treating it as an intangible asset under section 32(1)(ii) of the Act is no more res integra in view of the decision of the Hon'ble Supreme Court in CIT v/s Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT] as held that goodwill is in the nature of any other business or commercial right or similar in nature, hence, is to be treated as intangible asset. - Decided in favour of assessee.
Depreciation on non–compete fee - Additional ground of appeal - HELD THAT:- The issue raised in the additional ground can be decided without making investigation into fresh facts. Therefore, we are inclined to admit the additional ground raised by the assessee. Undisputedly, in the year of payment of non–compete fee i.e., A.Y. 2002–03, the assessee had claimed it as revenue expenditure. However, the Departmental Authorities as well as the Tribunal held that the expenditure incurred by the assessee is capital in nature. Of course, the Tribunal allowed depreciation on non–compete fee by treating it as an intangible asset. Notably, in subsequent assessment years i.e., 2003–04, 2004–05, 2008–09, 2011–12, 2012–13 and 2013–14, the Tribunal has allowed assessee’s claim of depreciation on non–compete fee while entertaining additional ground raised by the assessee. Therefore, following the consistent view of the Tribunal, we direct the Assessing Officer to allow depreciation on the opening WDV of the non–compete fee. This ground is allowed
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2019 (10) TMI 1498 - MADRAS HIGH COURT
Validity of assessment order - reversal of input-tax credit (ITC) allegedly claimed in excess - interest in terms of section 42(3) of TNVAT Act - HELD THAT:- The scheme of levy of interest under section 42 is applicable to all assessments of tax barring a self assessment under section 21. Thus where any amount is due as per the return filed by the petitioner, the same is immediately payable and no separate notice of demand need be issued in that regard as the return of income is itself an assessment of the petitioner. In all other cases, where pre-assessment notice was issued to the petitioner and a demand raised vide an order of assessment, such order of assessment shall be deemed to be a demand notice and the demand raised there under is to be paid within 30 days from the date of service of the order of assessment. In such cases, interest under section 42(3) is liable to be paid in addition to the tax demanded at the rate of two per cent. per month for such month for the entire period of assessment.
In the present case, the petitioner has admittedly remitted the demand for the years 2007-08 and 2008-09 on January 31, 2011 and June 23, 2011 even prior to the dates of assessment, i. e., December 23, 2011. Thus and since the demands have been paid within the time lines stipulated in terms of section 42(1), no interest can be levied in terms of section 42(3). As far as the period 2009-10 is concerned, the order of assessment is dated September 9, 2011 and the demand raised has been remitted on October 7, 2011 within 30 days from date of order itself. Thus even in this case, the provisions of section 42(1) and 42(3) of the Act are inapplicable.
The writ petitions are allowed.
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2019 (10) TMI 1497 - NATIONAL COMPANY LAW TRIBUNAL, JAIPUR
Liabilities of dues against workers and employees and other liabilities - on whom the liability falls? - Whether the liabilities of workers and employees and other liabilities pertaining to Unit- I of the Corporate Debtor which had been sold under SARFAESI Act, 2002, prior to the CIRP commencement date are payable by the purchaser of Unit-1 or the same continue to be admissible against the Corporate Debtor? - HELD THAT:- The Respondent No. 2 is the appellant before the Hon'ble National Company Law Appellate Tribunal in his aforesaid Diary No. 2130/2019 dated 30.09.2019 has not filed the order of the Debt Recovery Tribunal, Jaipur dated 31.01.2019 which is the subject matter before the Hon'ble National Company Law Appellate Tribunal.
This Tribunal already held that that this order has no relevance or legal bearing and in the light of this order while deciding this IA No. 32/2018, the said order of Debt Recovery Tribunal, Jaipur dated 31.01.2019 need not be considered at all. This fact, it appears that it was concealed from the knowledge of the Hon'ble National Company Law Appellate Tribunal by Respondent No. 2. In IA No. 178/JPR/2019, the said order of the Debt Recovery Tribunal, Jaipur dated 31.01.2019 in SA No.2212018 was filed and a perusal of the same depicts that the said order of Debt Recovery Tribunal has no bearing on the present issue connected with IA No. 32/60/JPR/2018.
The Judgements and Annexures thereon clearly reveals that the Respondent No. 3 made it very clear to the Respondent No. 2 to acquire the Unit No. I of the Corporate Debtor on “AS IS WHERE IS BASIS, AS IS WHAT IS BASIS, WHATEVER TFDRE IS BASIS" which implies that it shall also acquire all the liabilities thereon - the Respondent No. 2 shall bear all the claims of the Respondent No. 1 and Respondent No. 5 - In the event any money which has been deducted towards statutory dues of EPF and is still lying with the corporate Debtor, the pp shall forthwith credit the same to the appropriate accounts of the concerned Authority.
Application disposed off.
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2019 (10) TMI 1496 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH
Application for withdrawal of petition - learned counsel for the petitioner-corporation bank states that she has instructions to apply for withdrawal of the petition - HELD THAT:- Petition dismissed as withdrawn.
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2019 (10) TMI 1495 - MADRAS HIGH COURT
Validity of assessment order - Assessee had filed the present writ petition straightaway once the order of assessment is passed - reply to the notice of proposal not filed - HELD THAT:- Perusal of the order impugned would show that the notice of proposal dated 09.11.2018 though was served on the Assessee/petitioner on 14.11.2018, he has not filed his objection nor sought for extension of time - On the other hand, the Assessee, had filed the present writ petition straightaway once the order of assessment is passed. Therefore, the petitioner is not entitled to raise all the points in this writ petition touching upon the factual aspects of the matter, when he has admittedly, not filed any reply to the notice of proposal. Under such circumstances, it is for the petitioner to agitate the matter before the next fact finding authority, viz., the Appellate Authority, so that the factual aspects of the matter can be considered and decided, as claimed by the petitioner.
Without expressing any view on the merits of the matter, this Writ Petition is disposed of only by granting liberty to the petitioner to file an appeal against the order impugned in this writ petition within a period of two weeks from the date of receipt of a copy of this order.
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2019 (10) TMI 1494 - ITAT CHENNAI
Deduction u/s 80P - AO disallowed the interest income earned on staff advance and the interest earned on fixed deposit and Savings Bank Account - HELD THAT:- Tribunal dismissed the assessee’s case for AY 2014-15[2018 (1) TMI 1670 - ITAT CHENNAI] - Since, this Tribunal in the assessee’s own case relying on the decision of Hon'ble Supreme Court rendered [1998 (5) TMI 6 - SUPREME COURT] including the case law relied on by the assessee and since, there is no change in the fact and law, following the judicial discipline, we follow the above order and dismiss the assessee’s appeal.
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2019 (10) TMI 1493 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH BENCH
Seeking directions to members suspended Board of Directors of the Corporate Debtor and their associates to submit/handover all the requisite books, financial data, information, returns and assets to the Resolution Professional immediately - seeking directions to provide necessary assistance/cooperation in smooth conduct of Corporate Insolvency Resolution Process - HELD THAT:- The respondent Nos. 1 to 5 are misconducting themselves in the course of Corporate Insolvency Resolution Process by not extending their cooperation and assistance to the Resolution Professional and are withholding and not disclosing the information supposed to be furnished by them and not furnishing the books and documents belonging to the corporate debtor, which were supposed to be maintained by them at the relevant point of time.
The Resolution Professional directed to issue a fresh notice immediately to respondent Nos. 1 to 5 specifically indicating what information/books/assets are still to be furnished by the respondents and the same shall be furnished by the respondents to the Resolution Professional within three weeks from the date of receipt of the said notice - application disposed off.
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2019 (10) TMI 1492 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - creation of a SPV which has not materialized - time limitation - HELD THAT:- There is no doubt that the Petition has been filed within limitation period. We have also carefully perused the terms and conditions of MOU whereby both the parties in addition to this financial transaction have entered for creation of a SPV which has not materialized. It is to be noted that the Corporate Debtor was already having tender in its favour from Kolkata Port Trust which as per its claim only has been illegally terminated by the Kolkata Port Trust and which has resulted into default in the payment of the loan taken by the Corporate Debtor - MOU consists of two transactions i.e. one is related to granting of loan and other is in regard to formation of SPV. From the perusal of MOU, it is evident that both these transactions are independent of each other. In any case, transaction loan has not been made for equity, hence, it remains of the nature of financial debt.
Filing of petition by all the three entities independently or by the Financial Creditor on behalf of other two parties only when such purpose would have assigned the debt payable by the Corporate Debtor to them to the Financial Creditor - HELD THAT:- Provisions of Section 5(7) of the Insolvency and Bankruptcy Code, 2016 are absolutely clear. No material has been placed on record that to the fact that such debt has been legally assigned or transferred to the Financial Creditor. Hence, to this extent, we accept this plea of the Corporate Debtor. However, the loan given by the Financial Creditor itself is more than threshold limit of ₹ 1 Lakh, hence, this fact has not help the cause of the Corporate Debtor as far as maintainability of this Petition is concerned - pending arbitration proceedings cannot be limiting factor.
The application deserves to be allowed - petition admitted - moratorium declared.
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2019 (10) TMI 1491 - ITAT BANGALORE
TP Adjustment - Comparable selection - HELD THAT:- We have noticed that the turnover of the assessee herein for the year under consideration was ₹ 13.97 crores and hence it falls under the category of 1 - 200 crores as per Dun and Bradstreet's analysis. Hence the assessee should be compared with the companies having turnover in the above said range as per the decision rendered by the co-ordinate bench in the case of Genesis Integrating Systems India P Ltd. [2011 (8) TMI 952 - ITAT BANGALORE].
Since the turnover of following companies are more than 200 crores, they are liable to be excluded under turnover filter Infosys Ltd, Larsen & Toubro Infotech Ltd, Mindtree Ltd, Sasken Communication Technologies, Persistent Systems Ltd and Tata Elxsi (seg)
Al following the decision of the co-ordinate bench rendered in the case of Electronics for Imaging India P Ltd. [2016 (2) TMI 1123 - ITAT BANGALORE] we direct the AO/TPO to exclude above said two companies ICRA Techno Analytics Ltd and KALS INFORMATION SYSTEMS Ltd also.
Determining the ALP - We direct the AO to compute margins by taking foreign exchange fluctuations gains/loss as part of operating income both in the case of the assessee and comparable companies.
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2019 (10) TMI 1490 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI, PRINCIPAL BENCH
Prayer for extending the time for completion of the CIR Process beyond 22.09.2019 when the period of 180 days has come to an end - HELD THAT:- A case is made out for extension of time in order to complete the Corporate Insolvency Resolution Process in respect of the Corporate Debtor. Accordingly, the application is allowed and the period beyond 22.09.2019 is extended by 90 days.
The application stands disposed of.
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2019 (10) TMI 1489 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH-IV
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- There is no denial whatsoever about utilisation of services of the Operational Creditor. In normal business practice, this argument cannot be countenanced because credit limits are likely to be exceeded in the exigencies of business. If the argument of the Corporate Debtor is accepted, then the Corporate Debtor itself should be deemed to have violated the terms of the Agreement.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition - this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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