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Showing 81 to 100 of 1410 Records
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2020 (12) TMI 1334
Seeking to set aside the attachment of the property of the corporate debtor by the respondent (E.D.) - whether NCLT can set aside the order passed by Enforcement Directorate? - HELD THAT:- It is clear that this Adjudicating Authority has no jurisdiction under section 60(5) and/or 32A(2) of the IB Code or under Rule 11 of the NCLT, to quash and/or set aside the order so passed by a Competent Authority of Enforcement Directorate (ED) under the PMLA. This Adjudicating Authority is not vested with the power of judicial review over administrative action or ¡s sitting as an Appellate Authority for the order so passed by the Competent Authority.
Section 32A of the IBC does not envisages any right upon this Adjudicating Authority to interfere in order passed by some Competent Authority. For this purpose, Applicant may approach the Appellate/Higher Authority of the concerned Competent Authority, who has passed the order in question. In view of this, it is opined that the Applicant may put forward his grievances before the concerned authority, who has passed the order and/or their Higher/Appellate Authority, as the case may be.
There are no merit in the Application, hence, the instant application is not maintainable - application dismissed.
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2020 (12) TMI 1333
Condonation of delay - delay of 272 days in filing this appeal before ITAT - HELD THAT:- The assessee is fully aware of the delay and the fact that there is no condonation petition or any reasonable cause for the delay aattributed by the assessee on record. Earlier the assessee has sought time to provide the same. Now the assessee submits further adjournments. In our considered opinion when there is a delay of 272 days which is quite considerable it was incumbent upon the assessee to file the condonation petition and submit the reasonable cause for the delay along the appeal. Despite being made aware of the delay the assessee has been seeking adjournment time and again.
Accordingly in our considered opinion the assessee having filed no condonation petition or submitted any reasonable cause for the delay, this appeal is liable to be dismissed as time-barred. Accordingly this appeal is dismissed as time-barred. - Assessee appeal dismissed.
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2020 (12) TMI 1332
Classification of supply - supply of goods or supply of services - activity of printing of Answer Booklets / Answer Copies and supplying it to Educational Institutions to be used in examinations by using its own raw material consisting of paper, printing ink etc. - answer booklet is classifiable under Chapter Heading 4820 or 4911? - rate of tax - HELD THAT:- Principal supply has been defined in Section 2(90) of the Central Goods and Services Tax Act as supply of goods or services which constitutes the predominant element of a composite supply and to which if any other supply forming part of that composite supply is ancillary - In the case of printing of books, pamphlets, brochures, annual reports, and the like, where only content is supplied by the publisher or the person who owns the usage rights to the intangible inputs while the physical inputs including paper used for printing belong to the printer, supply of printing [of the content supplied by the recipient of supply] is the principal supply and therefore such supplies would constitute supply of service falling under heading 9989 of the scheme of classification of services.
In the instant case applicant is supplying answer booklets/copies with or without OMR having its name logo etc. of his customer and the printing material used in printing of the said items pertains to the applicant. We further observe that the supply of printing to the content as supplied by the recipient of the supply is the ancillary to the principal supply of the answer booklets/copies with or without OMR, therefore the supply will be considered a supply of goods falling under respective heading of chapter 48 or 49 of custom tariff.
The activity of printing of Answer Booklets/ Answer copies and supplying it to Educational Institutions to be used in examinations by using its own raw material consisting of paper, printing ink etc. is 'Supply of goods' falling under chapter Heading/ Tariff item 4820 of entry 123 of the schedule II to the notification 01/2017 central tax (Rate) dated 28/06/2017 as amended and chargeable to GST @ 12%
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2020 (12) TMI 1331
Unaccounted cash receipts - amount is assessed in the hands of the two recipient entities as aforesaid and not the assessee - Addition u/s 68 - Unexplained cash credit confirmed as onus which had shifted upon the Revenue, has been appreciably discharged by the Revenue and addition confirmed - HELD THAT:- SLP dismissed.
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2020 (12) TMI 1330
Excess sugarcane price paid to the members & non members - HELD THAT:- The issue relating to excess sugarcane price paid by the assessee, the issue is restored to the file of Assessing Officer with similar directions as above in the cases of M/s. Vasant Rao Dada Patil SSK Ltd.[2019 (3) TMI 1637 - ITAT PUNE] and also consider the contentions of assessee with respect to SMP vis-a-vis FRP regime, where ever raised. The Assessing Officer shall decide the issue, after affording reasonable opportunity of hearing to the respective assessees, in accordance with law - Ground relating to the issue of excess cane price paid to members & non members is allowed for statistical purposes in the aforesaid terms.
Sale of Sugar at Concessional rate to members - HELD THAT:- As relying on SHRI SHANKAR SSK LTD [2019 (6) TMI 1399 - ITAT PUNE] the issue sale of sugar at concessional rate to member is remanded to the file of Assessing Officer for fresh adjudication for the purpose of giving effect to the directions of Hon’ble Apex Court KRISHNA SAHAKARI SAKHAR KARKHANA LTD. [2012 (11) TMI 669 - SUPREME COURT] in proper perspective.
Beneficiary Membership Capital & C Class membership capital - HELD THAT:- As relying on KARMAVEER SHANKARRAO KALE SSK LTD. VERSUS ACIT, AHMEDNAGAR [2019 (9) TMI 1475 - ITAT PUNE] we are of the considered view that the issue relates to the C-class membership fee is required to be remanded to the file of the Assessing Officer for fresh adjudication. Assessing Officer shall grant reasonable opportunity of being heard to the assessee and pass a speaking order. Accordingly, the relevant grounds raised by the assessee on this issue are allowed for statistical purposes.
Contribution towards Area Development fund - HELD THAT:- As relying on SHRI SHANKAR SSK LTD [2019 (6) TMI 1399 - ITAT PUNE] we are of the considered view that the issue relates to the contribution towards Area Development Fund is required to be remanded to the file of the Assessing Officer for fresh adjudication. The Assessing Officer shall grant reasonable opportunity of being heard to the assessee and pass a speaking order on this issue. Accordingly, the relevant grounds raised by the assessee on this issue are allowed for statistical purposes.
Appeal of the assessee is allowed for statistical purposes.
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2020 (12) TMI 1329
Refund claim of tax paid on export of services - zero-rated supply - intermediary services - time limitation - opportunity of hearing provided to the appellant, or not - place of provision of service - place of supply - applicability of Section 13(8)(b) of the IGST Act - HELD THAT:- The refund for the month of October, 2017 was filed on 31-10-2019 that is within expiry of two years from the relevant date as stipulated under Section 54(1) of the CGST Act, 2017. Further, the contention of the appellant is agreed upon that they were not able to file the refund claims for the subsequent period on the common portal because deficiency memo for earlier period was pending. The refund claims were not time barred.
As to whether the services provided by the appellants were covered under “intermediary services” as defined under Section 2(13) of IGST Act and applicability of Section 13(8)(b) of the IGST Act, thereon? - HELD THAT:- The appellant is providing a service of Promotion and Marketing to the university/college on a principal to principal basis and is not facilitating a provision of service between two persons. It also needs to be mentioned that in few cases appellant in addition to the above service has also undertaken the activity of providing market intelligence about the requirements of the intending students. This also shows that the appellant is providing a service directly to the Universities/Colleges and not to any person on behalf of the Universities/Colleges.” This fact is itself contradictory here as the appellant himself is accepting that only in few cases they were providing their services directly on principle to principle basis. It shows that they are themselves accepting that they are providing intermediary services.
The appellants were engaged by the foreign universities/institutes to represent them in the territory of India who in-turn acted as their education/recruitment agent to perform the services in the territory of India. That such services provided by the appellants were only as a representative of the foreign universities and not as an independent service provider providing services on their own account.
The Section 13(8)(b) of the IGST Act, 2017, provides that the place of supply for the intermediary services would be the location of the supplier of such services (i.e. location of intermediary service provider) and in the instant case it is in India. As discussed above the appellants are covered under ‘intermediary’ and hence, their place of provision of services is not outside India contrary to condition (iii) of Section 2(6) of the IGST Act which defines ‘export of service’. The provisions of place of supply in case of Intermediary, has been carved out in GST Act as per international practices, if services provided by the intermediary located in India would be without payment of tax - For Export of Services all the conditions as laid down under Section 2(6) of IGST Act, 2017 are to be followed in totality without any violation, and that there is no scope of partial compliance of the conditions laid down therein.
The universities engage the entities like applicant for promotional & marketing activities for course taught by them& making the perspective students aware about the course fee and other associated costs, market intelligence about course and the latest educational trend/future perspective/job security/placement etc. and that such recruitment services provided to students of the foreign university are not covered under export of services, such services are provided only as a representative of foreign university and not as an independent service provider. Therefore, place of supply shall be under Section 13(8) of the IGST Act, 2017 not under Section (2)(6) of the above Act. Place of supply shall be the location of service provider in taxable territory and will not qualify as export of service.
The refund claims were not hit by time limitation, but the services provided by the appellants to the Foreign Universities and the students in India were provided only as a representative of foreign universities and not as an independent service provider; that such services were not covered under export of services and thus exigible to GST; that the place of supply shall be governed by Section 13(8)(b) and not by Section 13(2) of IGST Act, 2017. Place of supply of services was the location of service provider in India. Thus, the services of the Appellant are not ‘Export of Services’ under the GST Act, and refund claims of the appellant are inadmissible and liable to be rejected.
Appeal disposed off.
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2020 (12) TMI 1328
Permission to export the legally purchased auction of coal - purchase of auction coal with supporting documents or not - HELD THAT:- The petition is disposed of by passing following order:
i) Petitioner is at liberty to satisfy respondents No. 3-6 with supporting documents that;
(a) the coal in question is auction coal.
(b) the said coal was purchased by Shri. Pukash N. Sangma in public auction.
(c) he has purchased the said coal from Shri. Pukash N.Sangma.
(ii) On satisfaction that petitioner has validly purchased the auction coal from Shri. Pukash N. Sangma, respondents No. 3-6 shall permit the petitioner to export the said coal to Nepal.
Petition disposed off.
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2020 (12) TMI 1327
Principles of natural justice - validity of assessment order filed in the rectification application - seeking reconsideration of issue afresh based on the documents relied on by the petitioner - HELD THAT:- Ext.P14 order passed by the 2nd respondent in Ext.P13 rectification application filed by the petitioner is one in violation of the principles of natural justice, since the petitioner was not afforded with an opportunity of being heard. Therefore, the said order is liable to be set aside and the 2nd respondent has to reconsider that application, with notice to the petitioner and after affording it an opportunity of being heard.
This writ petition is allowed by setting aside Ext.P14 order dated 18.11.2020 of the 2nd respondent, by directing the 2nd respondent to reconsider Ext.P13 rectification application filed by the petitioner and take an appropriate decision, with notice to the petitioner and after affording it an opportunity of being heard. A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month from this date.
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2020 (12) TMI 1326
The Supreme Court of India issued an order in 2020 (12) TMI 1326. Justices A.M. Khanwilkar, B.R. Gavai, and Krishna Murari presided over the case. The appellant's counsel argued that the Tribunal accepted the classification but remanded the case for further evidence unnecessarily. The Court issued notice returnable within four weeks and permitted Dasti.
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2020 (12) TMI 1325
Issuance of status-quo order in relation to the pending Applications filed under Section 7 of IBC - HELD THAT:- The Hon'ble Supreme Court has not issued any Stay on the Ordinance. The financial creditors in class want to fulfill the requisites of the Ordnance. The Corporate debtor did not place any record on its Website and claims privacy. The information which could be available on Website of the RERA is not sufficient for the Financial Creditors in Class to fulfil the requirement of the Ordinance. Consequently, the right to the property of the Financial Creditor in Class cannot be protected, as the officious remedy available to them will be curtailed.
The Corporate Debtor is directed to provide the information about the 100 number of Allottees or 1/10th of total number of the Allottees of the project, whichever is less, excluding those with whom settlement has happened. The information to be provided by the CD to the financial creditors in class shall include the names, address, Telephone/Mobile numbers/e-Mails of the allottees of the project, which is the subject matter of the application - List the matter on 18.2.2021.
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2020 (12) TMI 1324
Seeking substantive consolidation of the Corporate Debtor - assets and liabilities deemed to be assets and liabilities of all the consolidated Corporate Debtors - appointment of a common Resolution Professional be made in order to carry out the obligations and functions of a Resolution Professional - constitution of common Committee of Creditors for the Corporate Debtor and the Respondents Nos. 2-6 - formulation of comprehensive Resolution Plan dealing with the Corporate Debtor and the Respondent Nos 2-6.
HELD THAT:- It is a matter of record that the CIRP of the Corporate Debtor/ Respondent No. 1, Sona Alloys Pvt. Ltd., admitted on 16.06.2020 vide C.P.(I.B) No. 586/2019. Thereafter, against the Ganga Advisory Pvt. Ltd. (Respondent No. 2) CIRP is initiated by the Adjudicating Authority on 24.01.2019 on filing an application under section 7 of the 1B Code by Pani Logistics and thirdly against Neuromed Imaging Centre Pvt. Ltd., CIRP is initiated on 12.07.2019 by this Adjudicating Authority on filing an application by Mahaveer transport under section 7 of the 1B Code.
Evidently, as also matter of record that there are 3 separate orders of admission against the 3 different Companies (Corporate Debtors) having separate entities. Further, the CIRP is initiated on the basis of separate cause of actions, defaults and the amount due to the different creditors. As such, when these three companies are separate entities, the consolidation is not at all possible - It is a matter of record that the Ganga Advisory Pvt. Ltd. and Neuromed Imaging Centre Pvt. Ltd. are under liquidation. It is also a matter of record that Respondent No. 1, 2 and 3 are not group companies, hence, the question of any consolidation of the properties does not arise at all.
It is pertinent to note that Substantial consolidation as a remedy should always be treated as an exception rather than the rule. Moreover, this remedy can be an option for group companies however, in the instant matter the companies are not group companies but only hold substantive shares in the Corporate Debtor.
The instant application is not maintainable - Application dismissed.
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2020 (12) TMI 1323
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - Service of demand notice - HELD THAT:- On perusal of the record, it is found that the Demand Notice was issued by the applicant on 15.03.2019, under Section 8 of the I&B Code, through registered post on 19.03.2019. However, the same was returned with a postal remark "addressee moved". The applicant has also issued Demand Notice through email on the same date demanding the arrears of the Annual Listing Fee. However, no dispute is raised by the corporate debtor.
Time Limitation - HELD THAT:- Admittedly, the petitioner received the last payment on 28.06.2013 amounting to ₹ 67,416/- for the Financial Year 2013-2014. However, the petitioner in Form-5 has stated that debt fell due on 01.04.2015. Further, on perusal of page no. 12, at para-2.10 of the petition, it is found that the respondent has made payment of annual listing fee to the applicant till Financial Year 2013-2014 only. The last payment being received on 28.06.2013 for an amount of ₹ 67,416/-. Thereafter, the corporate debtor did not pay any amount in respect of Annual Listing Fee to the petitioner. Since the debt fell due on 01.04.2015 as admitted by the petitioner, that itself is barred by Law of Limitation - Further, the date of default in Form-5, Part-IV in clause No.2 is not reflected which makes Form-5 incomplete. However, while calculating from the due date as per Form5 which is shown 01.04.2015, is beyond three years.
On perusal of the application, it is found that the applicant has annexed one affidavit along with a Form-5 in support of initiation of Corporate Insolvency Resolution Process. Admittedly, in para-2.2 (page no. 8), it is stated that the respondent company was earlier known as "Adeshwar Cotton Industries Ltd." and the same came to be replaced by "ACIL Cotton Industries Ltd." on 06.10.2019. In support of the said contention, the applicant annexed master data received from the MCA website. However, even after the change of name of the corporate debtor, the applicant has not entered into a fresh agreement with ACIL Cotton Industries Ltd. (corporate debtor) - the agreement so filed cannot be relied upon, as the same is not a valid agreement in the eye of law.
The application so filed, under Section 9 of the Insolvency and Bankruptcy Code, 2016, is bad in the eye of law and is not maintainable, hence, it does not deserve for admission - petition dismissed.
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2020 (12) TMI 1322
Rectification of mistake - error apparent on the face of record - Export of services or not - Commission received by the Applicant in convertible Foreign Exchange for rendering services - intermediary services - zero rated tax - section 16 (1) (a) of the Integrated Goods and Services Tax Act, 2017 - HELD THAT:- On perusal of the aforesaid Order dated 11.12.2019, it is seen that all the submissions and contentions put forth by the Applicant have been duly considered by this Appellate Authority. It was only after due considerations of all the submissions and contentions, set forth by the Applicant. that this Appellate Authority had arrived at the conclusion that there was no error apparent on the face of the record. as being alleged by the Applicant, and hence, rectification application dated 21.08.2019 was rejected by observing that the interpretations, being drawn by the Applicant with regard to Section 97(2)(e) of the CGST Act, 2017 which empowers the Authority for Advance Ruling as well as the Appellate Authority for Advance Ruling to pronounce ruling on the question of “determination of the liability to pay tax on any goods or services or both, was clearly debatable in view of the differing interpretations drawn by this Appellate Authority, and therefore, this Appellate Authority vide Order dated 11.12.2019 had held that there was no error apparent on the face of the record, which would warrant rectification of the original Order dated 22.03.2019 passed by this Appellate Authority under Section 102 of the CGST Act, 2017.
For arriving at the aforesaid conclusion, this Appellate Authority had considered all the case laws, cited by the Applicant in his original application dated 21.08.2019, wherein the Hon'ble Courts and Tribunals have laid down the principles of law with regard to the true interpretation of the term 'mistake' or 'error', when used with the term ‘apparent' in the various Acts, the presence of which in the Order would warrant the invocation of the rectification provision laid down under those particular Acts.
As regards the supplementary submissions filed by the Applicant on 16.12.2020, wherein it was stated that the Department has accepted the ruling pronounced by the Hon'ble Kerala High Court in SUTHERLAND MORTGAGE SERVICES INC VERSUS THE PRINCIPAL COMMISSIONER OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS, CENTRAL GST AND CENTRAL EXCISE, KOCHI, THE COMMISSIONER OF STATE TAX, ASSISTANT COMMISSIONER, KAKKANAD RANGE-4 [2020 (3) TMI 186 - KERALA HIGH COURT], it is stated that it has no bearing upon the outcome of the instant Application filed by the Applicant.
The Miscellaneous Application dated 25.09.2020 filed by the Applicant is not legally maintainable, and hence the same is liable to be rejected
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2020 (12) TMI 1321
Liquidation of Corporate Debtor - section 33(1) & 34(1) of the IB Code - HELD THAT:- On perusal of the records, it is found that Suspended Management has already appeared in the matter. Though they were allowed time to file reply on 12.11.2020, within two weeks, but has failed to file reply. However, the Suspended Management, being promoter, was always present in the COC meetings and never raised any objection.
It is a matter of record that there is only one member in the Committee of Creditors i.e. Punjab National Bank, who has passed the resolution for liquidation with 100% voting, as NPV of ₹ 461.15 lakhs, proposed by the Resolution Applicant, was less than the liquidation value of the assets of the Corporate Debtor - it is also pertinent to mention herein that recently the Hon’ble Supreme Court of India in its judgement of committee of Creditors of Essar Steel India Limited through Authorised Signatory vs. Satish Kumar Gupta & Ors. [2019 (11) TMI 731 - SUPREME COURT] where it was observed that the commercial wisdom has been exercised by the CoC after taking into count all the factors leading to maximisation of asset value of the Corporate Debtor, but the ultimate discretion of what to pay and how to pay each class or sub-class of creditors lies with the COC.
The company is ordered to be liquidated - moratorium declared shall be cease to have effect - application allowed.
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2020 (12) TMI 1320
Rectification u/s 154 - HELD THAT:- At page 60, paragraph 47 is, on account of a typographical error, numbered as paragraph 37.
Accordingly, “37” in the beginning of this paragraph stands substituted by “47”; and, all remaining paragraphs are renumbered as 48 to 67, instead of 38 to 57.
At page 60-61, certain observations were made about Mr Cyrus Mistry. One fact, which was inadvertently missed out, was that the information furnished by Mr Mistry was in response to a notice. Under these circumstances, the observations made in para-38, which is now renumbered on account of typographical mistake as para-48, is modified by substituting as under:-
“48. It is well known that Cyrus Mistry, a former Chairman of the Tata Group, was removed from his position in the Tata Group on 24th October 2016, and within eight weeks of his removal, he sends this material in response to notice, against the trusts in the Tata group - including the assessee before us, to the Assessing Officer. The inputs from those engaged in a rivalry with an assessee ought to have been considered by the department with a reasonable degree of circumspection and should not be placed on such a high pedestal so as to relegate all other material facts and accepted past assessment history of the case into insignificance.”
The above mistakes stand rectified accordingly, and, to that extent, the order dated 28th December, 2020 stands modified.
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2020 (12) TMI 1319
Maintainability of suit - Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice - conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules - tortious interference is made out by FRL or not - Whether the present suit is prima facie maintainable? - HELD THAT:- Challenge of FRL to the EA order is not on merits and no declaration for the EA order being invalid or illegal on merits is sought from this Court. Case of the FRL is that since Amazon is trying to enforce and act upon the EA order before the Statutory Authority/Regulators and as the Emergency Arbitrator is a coram non-judice, this Court can go into the validity of the same to the extent asserted in the present suit. In the present suit, the cause of action pleaded by FRL is the tortuous interference by Amazon in its lawful transaction and to determine the ingredients of the said cause of action, i.e. whether use of 'unlawful means' is being resorted by Amazon, this Court is required to return a finding - this Court is of the considered opinion that prima facie the present suit cannot be held to be not maintainable on the two grounds urged by Amazon, that is, that the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before this Court have already been urged and considered by the Emergency Arbitrator.
Whether the Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice? - HELD THAT:- It is now well settled that party autonomy is the backbone of arbitration. The courts in India have given due importance to the concept of party autonomy, and have further given full effect to the choice of the parties with respect to all three laws involved in an arbitration agreement, subject to the public policy of India and the mandatory provisions of the A&C Act - In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self sufficient to govern the proceedings under arbitration at every stage. The Courts in such cases would uphold the express choice of the parties subject to the public policy of India and the mandatory provisions of the A&C Act.
The Indian law of arbitration allows the parties to choose a procedural law different from the proper law, and this Court finds that there is nothing in the A&C Act that prohibits the contracting parties from obtaining emergency relief from an emergency arbitrator. An arbitrator’s authority to act is implied from the agreement to arbitrate itself, and the same cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.
This court arrives at the conclusion that Firstly, the parties in an international commercial arbitration seated in India can by agreement derogate from the provisions of Section 9 of the A&C Act; Secondly, in such a case where parties have expressly chosen a curial law which is different from the law governing the arbitration, the court would look at the curial law for conduct of the arbitration to the extent that the same is not contrary to the public policy or the mandatory requirements of the law of the country in which arbitration is held; Thirdly, inasmuch as Section 9 of the A&C Act along with Sections 27, 37(1)(a) and 37(2) are derogable by virtue of the proviso to Section 2(2) in an International arbitration seated in India upon an agreement between the parties, it cannot be held that the provision of Emergency Arbitration under the SIAC rules are, per se, contrary to any mandatory provisions of the A&C Act. Hence the Emergency Arbitrator prima facie is not a coram non judice and the consequential EA order not invalid on this count.
Whether the Resolution dated 29th August, 2020 of FRL is void or contrary to any statutory provision? - HELD THAT:- Case of FRL is that its Board Resolution dated 29th August, 2020 does not violate any provision of the FRL's Article of Association or any provision of law and that the same is in compliance with the fiduciary duty owed by FRL to its stakeholder, which averments have not been seriously disputed by Amazon except contending that the Board Resolution dated 29th August, 2020 is in breach of FCPL SHA and FRL SHA. The resolution being in breach of the FRL SHA and FCPL SHA is distinct from the resolution being void or contrary to any statutory provision or contrary to the Articles of Association of FRL.
To claim that the Board Resolution of FRL dated 29th August, 2020 is void, Amazon also contends that consent of FCPL as required under the FRL SHA has not been taken in this regard. However, FRL has placed on record the letter dated 29th August, 2020, signed on behalf of both FRL and FCPL wherein FCPL has granted its approval for the transaction between FRL and Reliance. During the course of arguments, learned counsel for FRL contested the letter dated 29th August, 2020 claiming that the same is not accompanied by a statement of truth based on affidavit, however, since arguments in the application have been heard finally at the ad interim stage, both parties have filed documents without filling the necessary affidavits, which the parties will be required to in the suit, while completing the pleadings.
This Court is of the opinion that the Board Resolution dated 29th August, 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association of FRL.
Whether by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? - HELD THAT:- A conflated reading of the Clause-4.1 (iv) of the FCPL SHA and Clause-4.1 of the FRL SHA would show that vide the FCPL SHA a control was created even on the voting rights of the promoters of FCPL in relation to their decisions as shareholders of FRL so as to enable the approval of any and every resolution necessary or desirable to give effect to FCPL SHA and FRL SHA and likewise to ensure that no resolution of FRL is passed which is not in accordance with the FCPL SHA and/or FRL SHA. Even Clause-4.1 of the FRL SHA correspondingly provides for an obligation on every person representing as a shareholder of FRL, to exercise any power to vote or cause the power to vote to be exercised at any meeting of the shareholders so as to enable the approval of any and every resolution necessary or desirable to give full effect to the FRL SHA and to ensure that no resolution which is not in accordance with FRL SHA is passed.
The rights granted to Amazon by conflation of the two Shareholders Agreements are prima facie disproportionate to the actual shareholding of Amazon and by camouflaging of words, the extensive rights held by Amazon by the provisions of the inter se agreements set out above, cannot be masked as mere protective rights so as to fall beyond the test of ‘control’ - this Court is prima facie of the opinion that the conflation of the three agreements i.e. FRL SHA, FCPL SHA and FCPL SSA besides creating protective rights in favour of Amazon for its investments also transgress to 'control' over FRL requiring government approvals and in the absence thereof are contrary to FEMA FDI Rules.
Whether prima facie a case for tortious interference is made out by FRL? - HELD THAT:- The tort of unlawful interference in a contract, also referred to as ‘tortious interference’ and ‘causing loss by unlawful means’ forms a species of economic torts and has since decades been a subject of judicial and academic debate - thus, existence of a contract, interference wherein is alleged is a sine qua non for the tort of inducement. Contention on behalf of Amazon is that no such contract between FRL and Reliance has been placed on record hence FRL's suit for tortious interference is not maintainable. The two fold submission of Amazon in this regard is that firstly, the resolution of FRL dated 29th August, 2020 is void and secondly FCPL has not granted its consent which was required by FRL before proceeding with the transaction and in any case the said document has not seen the light of the day.
Whether FRL is entitled to an interim injunction? - HELD THAT:- The trinity of the principles for grant of interim injunction i.e. prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the 'control' that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. However, the main tests in the present case are in respect of "balance of convenience" and "irreparable loss". Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon.
It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created preemptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injunction is made out in favour of the FRL and against Amazon.
The present application is disposed off, declining the grant of interim injunction as prayed for by FRL, however, the Statutory Authorities/Regulators are directed to take the decision on the applications/objections in accordance with the law.
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2020 (12) TMI 1318
Pendency of judgement relied upon in the impugned judgement - It is urged that the judgment relied upon by the Tribunal referred to in paragraph 2 of the impugned judgment is pending in appeal before the High Court of Judicature at Allahabad.
HELD THAT:- Issue notice on the application for condonation of delay as well as on the Civil Appeal, returnable within four weeks.
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2020 (12) TMI 1317
Mining services or not - contributions to National Mineral Exploration Trust (NMET) and District Mineral Foundation (DMF) under the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR) read with National Mineral Exploration Trust Rules, 2015 ('NMETR') and Mines and Minerals (Contribution to District Mineral Foundation) Rules, 2015 ('MMCDMFR') - consideration towards supply of mining service by Andhra Pradesh Government, included for purpose of value of supply chargeable to GST or not - Reverse Charge Mechanism - HELD THAT:- The charges levied under MMDR Act are meant to be the charges levied under any law other than the GST Act. Thus, the payments made to DMF and NMET are very well includible under the 'value of supply' in addition to the royalties paid and can be called a \total consideration' received for granting mining and leasing rights - the argument of the applicant that Royalty is only a measure of NMET and DMF contributions and cannot be equated with NMET and DMF and that NMET and DMF are not in respect of single supply of service i.e. licensing that warrants clubbing of all amounts i.e. Royalty, NMET and DMF under Section 15 of the GST law for the purpose of valuation does not hold good.
The service provided is only the license to extract mineral ore and also the right to use such minerals extracted is a single service where the consideration is payable under three heads and in case any one of the payments is not made, the service provider, that is the Government would not issue the permit to use the mineral ore so extracted. Hence it forms the value of the supply under Section 15 and the charges for DMF and NMET being compulsory payments, would only amount to application of the amounts paid and still would form the value of the taxable services - there are no separate service providers for royalty, DMF and NMET and in all cases the Government which has provided the license to mine mineral ore and permitted the use of such mineral ore mined would be the person who has provided the service.
As per Entry No. 5 of Notification No. 13/2017-Central Tax (rate), GST on services supplied by Central Government State Government or Local Authority, to a business entity needs to be paid by such business entity under RCM.
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2020 (12) TMI 1316
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - validity of demand notice - HELD THAT:- The demand notice dated 21.08.2019 is issued by one Mr. Naveen Jain claiming to be Director of the applicant company. Demand notice, a pre-requisite under section 8 of the Insolvency & Bankruptcy Code, 2016 for filing the petition under section 9, is signed and issued by Mr. Naveen Jain without any authority. On perusal of the record it is found that no document is filed by the applicant authorising Mr. Naveen Jain to sign and issue such demand notice. On perusal of the records it is also found that one Mr. Jatinder Kumar, claiming to be Director of the petitioner company, has signed the application (form 5), but no document is filed whereby Mr. Jatinder Kumar has been given authority to file such application. Thus, due to want of proper authorisation, supported with Board Resolution, demand notice and subsequent filing of the instant application is bad in the eye of law and is not maintainable.
The agreement dated 10.11.2017 entered between the petitioner and respondent stipulates that (Clause No. 32), which read as; “whether the termination of this Agreement by either party has been legitimate, the parties shall attempt to settle such dispute amicably between them in the event that such dispute has not been amicably settled within 90 days, then such a question or dispute shall be referred to and finally resolved by arbitration with the Arbitration Rule of Arbitration and Conciliation Act, 1996 and the precise location of the arbitration shall be Gurugram - the “Code” cannot be used as an arm twisting weapon. Further, the applicant has admitted that it had paid a sum of ₹ 1.00 crore towards security which is refundable.
The petition is not maintainable and bad in the eyes of law - Petition dismissed.
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2020 (12) TMI 1315
Addition u/s 43B - interest paid to Government of Tamil Nadu - ITAT said matter should go back to the A0 to verify as to whether assessee paid the interest to Government of Tamil Nadu or to any other financial institution or it is only a provision made - HELD THAT:- Against the remand order of the Tribunal, we do not find any substantial question of law to be arising in the present case and therefore, the Assessing Authority may take action in accordance with law in pursuance of the remand order of the learned Tribunal.
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9911796707
