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Showing 81 to 100 of 1486 Records
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2020 (3) TMI 1407
Rectification of defect on payment of appeal fees - AR submitted that the assessee appeal was dismissed as the defect of short payment of appeal fees was not rectified - As submitted assessee has paid the balance appeal fee of Rs.9, 500/- on 17.10.2018 and the proof was filed - HELD THAT:- On considering the information filed by the assessee, we found that the assessee has rectified the defect and complied the directions of the registry, further DR has also accepted these facts. Accordingly, we considering the proof of rectification of defect on payment of balance appeal fees, recall the tribunal order(assessee appeal) [2019 (7) TMI 1931 - ITAT BANGALORE] and direct the Registry to fix the case for hearing on 26.05.2020. Since the date of hearing was pronounced in the open court before both the parties, no notice is to be issued and the Misc. Petition filed by the assessee is allowed.
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2020 (3) TMI 1406
Profiteering - purchase of Duplex Row House - it is alleged that the Respondent had not passed on the benefit of ITC - benefit of transitional ITC - violation of section 171 of CGST Act - HELD THAT:- It is revealed that the Respondent is executing a project known as "Sahej Valley" at Dandipalli in Rourkela. It is also revealed that the Applicant No. 1 has purchased a Duplex Row House No. B3 in the above project and has alleged vide his application dated 09.08.2018 that the Respondent has not passed on the benefit of ITC to him. The above application was examined by the Odisha State Screening Committee on Anti-Profiteering under Rule 128 (2) of the CGST Rules, 2017 and after having prima-facie satisfied itself that the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 had forwarded it to the Standing Committee on Anti-Profiteering for further action. The Standing Committee had considered this application in its meeting held on 11.03.2019 and sent it to the DGAP for investigation under Rule 129 (1) of the above Rules.
It is apparent from the perusal of the details of the Electronic Credit Register attached as Annexure-8 with his Report by the DGAP that the Respondent has become entitled to the benefit of ITC during the period from July, 2017 to March, 2019. However, it has not been explained by the DGAP on which project the above ITC has become available to the Respondent and in case this ITC has become available on the purchases made in respect of the above project why the benefit of the above amount should not be passed on to the buyers of the houses in the above project - It is also revealed from the perusal of the e-mail dated 18.04.2019 sent by the ICICI Bank which has given loan to the Respondent for purchasing the above house that the Bank has released payment of Rs. 17,69,850/- vide cheque dated 20.05.2016 and an amount of Rs. 3,90,150/- vide cheque issued on 27.09.2016 in favour of the Respondent. Both the above cheques have been issued during the pre-GST period. It is further revealed that an amount of Rs. 5,40,000/- was released in favour of the Respondent vide cheque issued on 03.04.2018 during the post GST period.
Based on the facts the Report dated 20.09.2019 furnished by the DGAP cannot be accepted and he is directed to further investigate the present case under Rule 133 (4) of the CGST Rules, 2017 on the following issues and submit his detailed Report under Rule 129 (6) of the Rules within a period of 3 months from the date of passing of this order:-
(i) What was the basis of accepting the Completion Certificate issued by a private Architect?
(ii) Which is the Competent Authority to issue the Completion Certificate in the State of Odisha?
(iii) Whether the above Respondent has earned ITC on the above project during the period from July, 2017 till date?
(iv) Whether the above Respondent has utilised the ITC during the period from July, 2017 till date for discharging his output GST liability in respect of the above project?
(v) Whether the Respondent has claimed transitional credit through the TRAN-1 statements filed in respect of the above project?
(vi) Whether the Respondent has availed benefit of additional ITC since July, 2017 till date and he is liable to pass on the same to his buyers?
(vii) Whether the above land owners have sold their share of the houses and if so whether they have passed on the benefit of ITC to the buyers of these houses"?
(viii) Whether Applicant No. 1 is entitled to the benefit of ITC?
(ix) Whether rest of the 8 house buyers are eligible for the benefit of ITC?
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2020 (3) TMI 1405
Income from selling the plot - business income OR capital gain - Applicability of section 50C in respect of the lease hold right in land - HELD THAT:- Request for setting aside the issue of applicability of section 50C of the I.T. Act in respect of lease hold rights in land requires thorough consideration at the level of the Assessing Officer. Therefore, in the interest of justice, we set aside the issue involved in the additional ground i.e. “Whether the AO as well as Ld. CIT(A) erred in law and on facts in not appreciating that the provisions of section 50C of the Act are not applicable in respect of lease hold right in land”, this issue may be considered and decided by the Assessing Officer afresh, after giving adequate opportunity of being heard to the assessee, by adopting the prescribed procedure under the law. Appeal of the Assessee is allowed for statistical purposes.
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2020 (3) TMI 1404
Penalty u/s 271(1)(c) - Defective notice u/s 274 - non specification of charge - non specify under which limb of section 271(1)(c) the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or for furnishing of inaccurate particulars thereof - HELD THAT:- AO to assume jurisdiction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of jurisdiction by the learned Assessing Officer to levy any penalty. In this case, facts stated clearly establish that the notice issued under section 274 read with 271 of the Act is defective and, therefore, we find it difficult to hold that the learned AO rightly assumed jurisdiction to pass the order levying the penalty. As a consequence of our findings above, we direct the Assessing Officer to delete the penalty in question. - Decided in favour of assessee.
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2020 (3) TMI 1403
Dishonor of cheque - compounding of the offence under Section 138 of the Negotiable Instruments Act - HELD THAT:- Taking into consideration the judgment of the Hon’ble Apex Court in Kanchan Mehta’s case [2017 (10) TMI 218 - SUPREME COURT], it is opined that once the petitioner has deposited the entire cheque amount along with interst @ 10% as directed by this Court vide order dated 6.8.2012, no purpose would be served by keeping the matter pending. Even though the respondent/complainant has shown his resistance against accepting the cheque amount, yet the very object of the proceedings under the Act, is to secure the payment of the amount to the complainant and not to increase the arrears of the Courts, simply for the reason that the respondent/complainant does not give his consent. The object is primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, as may be found acceptable to the parties or the Court.
The present revision petition is allowed.
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2020 (3) TMI 1402
Maintainability of appeal - low tax effect - HELD THAT:- Special order has been passed by the CBDT and an appeal is filed pursuant to such a special order, the exception cannot be read and understood to apply to existing appeals which have already been filed prior to issuance of the special order. Therefore, we are of the considered view that the CBDT Circular no. 23 of 2019 should be read along with special order of the CBDT dated 16.09.2019 in respect of appeals filed pursuant to such special order and shall thus apply to all appeals filed on or after 16.09.2019 by the Revenue where the tax effect may be low but the appeal can still be filed by the Revenue on merits.
In the instant case, the appeal of the Revenue was filed on 22.05.2019 and therefore, the present appeal was not filed pursuant to such a special order of the CBDT dated 16.09.2019 and thus, the matter doesn’t fall in any exception as so prescribed by the CBDT in its earlier circular dated 8.8.2019 and the special order doesn’t apply in the instant case and the appeal has thus rightly been dismissed by the Bench on account of low tax effect in light of CBDT’s circular dated 8.8.2019.
In any case, both CBDT Circular no. 23 of 2019 and special order dated 16.09.2019 were not in existence and thus not part of the record at the time when the matter was heard on 20.08.2019 or at the time of passing of order by the Tribunal on 21.08.2019 and therefore, non-consideration of such Circular and the special order so passed by the CBDT is not a mistake apparent from record which can be rectified within the narrow compass of section 254(2) - Miscellaneous application filed by the Revenue is dismissed.
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2020 (3) TMI 1401
Maintainability of appeal - application for modification of order on the ground that the Settlement Plan, filed on 13.02.2020 covers all the allottees - HELD THAT:- The appellant is permitted to move such an application for modification. There would be liberty to approach this Court in case such application is not allowed.
Appeal disposed off.
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2020 (3) TMI 1400
Withdrawal of auction notices - seal and detach the projects site - HELD THAT:- As per the submission of the counsel for the Resolution Professional the claim has been admitted. In spite of that the property has not been released from the attachment and notices were issued for auction of the property by the said Authority - It is on record that in the present matter CIRP has been initiated against JNC Construction Private Limited on 30.05.2019 and the moratorium was declared. The Interim Resolution Professional has made efforts to seek the detachment of the property and to take the possession of the same but till date the possession has not been given by the said authority.
List on 30.03.2020.
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2020 (3) TMI 1399
Stay of demand - order imposing the condition of 20% apparently appears to be correct - HELD THAT:- The petitioner in the instant writ petition has challenged the impugned order whereby the 1st respondent i.e. the Income Tax Officer has granted a conditional order of stay directing the petitioner to deposit 20% of the demanded amount up to 10.02.2020.
Petitioner attempted to raise certain points on merits of the matter, but we do not deem it to be appropriate as it could be the matter of arguments pending appeals. The reasoning assigned in the impugned order imposing the condition of 20% apparently appears to be correct. Without expressing any opinion on the merits and with a rider that any observation of this Court will not be construed as an expression of opinion in the pending appeal, we enlarge the time upto 10.03.2020 for complying with the condition above mentioned.
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2020 (3) TMI 1398
Vacation of interim order - interim orders were passed relating to change of the management - red entities/green entities - Section 241 and 242 of the Companies Act, 2013 - HELD THAT:- It is clear that 133 Entities of IL&FS Group Companies incorporated outside the territorial jurisdiction of India, i.e., Offshore Group Entities were excluded from the purview of interim order passed by this Appellate Tribunal on 15th October, 2018. However, ‘resolution’ of Offshore Group Entities has been allowed subject to decision of the Management of the Board of Directors and supervisions of the Hon’ble Justice (Retd.) D.K. Jain.
Twenty-two entities have been classified as ‘Green Entities’, who were in a positon to clear the dues of many of the Secured Creditors including the Interveners/ Respondents, who are objecting and derived the benefit of the interim order. Thirteen Entities were declared “Amber Entities” who had the ability for making payment to some of the Senior Secured Creditors as and when fall due. Many of them had the cash flow sufficiency to meet current operational payments. In fact, out of 13 Amber entities, four were declared ‘Green Entities’ who can meet the liability of Secured Creditors and other creditors. It is only the Red Entities, which are about 55 in number, with regard to whom the resolution process is yet to be started - the matter progressed in smooth manner in view of the interim order enabling number of Companies including Green Entities to make payment through Senior Secured Creditors, Financial Creditors and other creditors and for resolution process. This in addition to the 133 Offshore Entities of IL&FS Group Companies, which were kept out of the purview of the interim order. They having become competent, the interim order was vacated.
There can be no deprivation of property except in accordance with law: Contractual rights of L&T IDF and IIDL and the right to receive its legitimate dues thereunder constitute ‘property’ protected under Article 300A of the Constitution of India. Therefore, L&T IDF and IIDL cannot be deprived of their right in property i.e. the right to recover the interest and principal amounts thereunder, by modifying the terms of such contract inter alia by way of resolution framework report dated 25.10.2019 (Resolution Framework Report), save under authority of law - HREL not even a party to the proceedings before Hon’ble Appellate Tribunal. The Hon’ble Appellate Tribunal cannot make orders in relation to counter-parties of HREL when HREL is not an Appellant in the instant matter and even L&T IDF and IIDL have not made HREL a party to the Appeals.
Section 242 vests the Tribunal with the power, if, on an application made under 241, the Tribunal is of the opinion – ‘that the Company’s affairs have been or are being conducted in a manner prejudicial to the public interest or in a manner prejudicial to the interests of the company; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up, then in such case the Tribunal, with a view to bring to an end the matters complained of, make such order as it thinks fit’ - The present case shows that prima facie case has been made out by the Central Government that the affairs of the six Companies of IL&FS & Group Companies are being conducted in a manner prejudicial to the public interest and there is a likelihood of the winding up of the Company - the Tribunal with a view to bring an end to the matter complained of is required to pass final order.
Therefore, it is clear that for regulating the conduct of the company’s affairs upon such terms and conditions, it is open to the Tribunal to pass interim order, which is just and equitable - it is clear that Tribunal/ Appellate Tribunal is required to follow principles of natural justice and other provisions of the ‘Companies Act, 2013’ or the ‘Insolvency and Bankruptcy Code, 2016’ and of any rules made thereunder for regulating its own procedure. Since the amendment of Section 424 with effect from 15th November, 2016, the Tribunal/ Appellate Tribunal is vested with the power to follow the procedure of Insolvency and Bankruptcy Code, 2016, in addition to the procedure laid down in the Companies Act, 2013 and the rules framed under the aforesaid Code and Act.
Tribunal/ Appellate Tribunal has ample power to pass interim order in terms of Section 242(4) of the Companies Act as passed on 15th October, 2018 and requires no modification/ recall.
The matter should be taken up by the new Management/ Board of Directors, who should take into consideration the decision of the Company Law Board and the settlement reached between the parties. It will be open to the New Management / Board of Directors of IL&FS and Group Companies to negotiate with SRS Orion Investments Ltd. and others (Applicants) for fresh terms of settlement, if they intend to change the shareholding of HCPL and sell it to some other person. Thereafter, the matter should be placed before the Hon’ble Justice (Retd.) D.K. Jain for its approval and if approved such proposal should be placed before the NCLT for its approval. Upon receipt of such approval, only the shareholding of HCPL be transferred - If no terms of settlement is reached or decision is disapproved by Hon’ble Justice D.K. Jain or the NCLT, in such a case, the NCLT will decide the claim of the Applicant – SRS Orion Investments Ltd. and others.
Applications, which are filed for renewal of the Fixed Deposit, are allowed.
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2020 (3) TMI 1397
Seeking leave to late filing of reply affidavit - HELD THAT:- The application under consideration is an execution application and respondent No. 1 challenges its maintainability. Though we heard the Ld.counsel, she requested further time. So in order to maintain statues que of the assets of the R1 company, it is fair and just to restrain the R1 from alienating and encumbering its property till the disposal of the application. Otherwise there is every likely hood of defeating the interest of the petitioners from realising the amount agreed to be paid by the respondents as per the consent decree.
The R1 is retrained from creating third party interest in respect of the assets of the R1 until the disposal of the application - R-2 seeks time to file reply affidavit. 2 weeks' time is granted from today to file reply affidavit by serving copy to the other side. Rejoinder may be filed within 2 weeks of receipt of the reply affidavit by serving copy to R-2.
Matter stands adjourned to 24/04/2020 for hearing as to the maintainability of the application.
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2020 (3) TMI 1396
Liquidation of Corporate Debtor - section 33(1) of the IBC, 2016 R/w Rule 11 of the NCLT Rules, 2016 - HELD THAT:- The Resolution Professional has made his best efforts to revive the Company by exploring the possibility to find a suitable Resolution Plan of the Corporate Debtor. The Committee of Creditors has also considered the lone Resolution Plan in question, and found it is not in compliance with extant provisions of Code and rules made thereunder and thus it was not approved with requisite majority as extant provisions of Code. The instant Application is filed strictly in accordance with law. Since the Applicant/existing RP was not recommended to appoint him as Liquidator by the COC, and time for CIRP is over, having no Resolution Plan accepted by the COC, it is necessary to appoint eligible Resolution Professional as Liquidator from the Panel forwarded by IBBI for Bangalore Bench, in order to further delay to initiate liquidation process as it against the object of Code.
It is found that he is eligible to be appointed as Liquidator for the Corporate Debtor. Since several home buyers are involved in the issue and majority of them are not interested to participate in the process of CIRP by participating in voting of respective resolutions placed for voting, an experienced Resolution Professional is required to be appointed. Therefore, it is a fit case to initiate Liquidation in respect of the Corporate Debtor by appointing the said Liquidator.
M/s. Samruddhi Realty Ltd. Respondent/Corporate Debtor to be liquidated in the manner as laid down in Chapter III (Liquidation process) Part II of the Code - application allowed.
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2020 (3) TMI 1395
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- It is a settled principle of law that there is a difference between the procedure for initiation of CIRP by the Financial Creditors U/s 7 of the IBC and the Operational Creditors U/s 9 of the IBC. So far as the Financial Creditor is concerned, as per Section 7 of the IBC, there is no need to deliver the notice before the initiation of CIRP and that has been decided by the Hon’ble Apex Court in Innoventive Industries Ltd. v. ICICI Bank [2017 (9) TMI 58 - SUPREME COURT].
For the initiation of CIRP U/s 9 of the IBC by the Operational Creditor, the Operational Creditor is required to deliver the demand notice upon the Corporate Debtor U/s 8 of the IBC. The main object of the inception of provision of Section 8 is, “This ensures that operational creditors, whose debt claims are usually smaller, are not able to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It may also facilitate informal negotiations between such creditors and the corporate debtor, which may result in a restructuring of the debt outside the formal proceedings”, and that is the reason in Section 8 of the IBC, the word, ‘deliver a demand notice of unpaid operational creditor’ is mentioned.
This Adjudicating Authority is of the considered view that under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, there are two modes for sending demand notice, one is, either at the registered office by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the application, it is found that the applicant had sent the demand notice through the registered post, which was returned as “no such person found”, so, Rule 5(2)(a) has not been complied with.
The applicant has not complied the provision contained under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, therefore, this Adjudicating Authority is of the considered view that the applicant has not delivered the demand notice as required U/s 8 of the IBC, which is the mandatory provision of law and so on this ground in the absence of delivery of demand notice as required U/s 8 of IBC - Petition dismissed.
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2020 (3) TMI 1394
Seeking approval of the Resolution Plan - HELD THAT:- This Adjudicating Authority understands and appreciates the purpose and spirits of Insolvency of Bankruptcy Code, 2016 keeping in view, ease of doing business, includes ease of take over and implementation of Resolution Plan, flexibility and finality of all problems. So that Resolution applicant shall focus on implementing the plan, strengthen the company in all spheres. If that space is not provided, if earlier litigations and liability continues, it will only burden and likely to pull down the company. The survival and to succeed in market, needs clean slate. In the tough market scenario, the race and survival of each company is very tough, it is like running a continues marathon race. However, strong the player be, if huge liabilities are on its shoulders, it is not possible to run effectively.
The successful resolution plan is fair and equitable and has taken the interest of all the stake holders. All the mandatory regulations are complied with.
The Resolution Plan submitted by M/s. Arcelor Mittal India Private Limited, the Resolution Applicant, approved by 100 % of voting in the 8th Committee of Creditor's Meeting held on 06.12.2019 is APPROVED as per Section 31(1) of the Insolvency and Bankruptcy Code, 2016. Accordingly, the same shall be binding on the Corporate Debtor, its employees, members, creditors, including the Central Government, any State Governments, or any local authority, guarantors and other stakeholders - Application allowed.
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2020 (3) TMI 1393
Grant of Financial upgradation of grade pay in the next promotional hierarchy - Modified Assured Career Progression (MACP) Scheme - Whether MACP scheme entitles financial upgradation of pay to the next grade pay or to the grade pay of the next promotional post as envisaged under the ACP scheme? - Whether MACP Scheme envisages grant of financial upgradation in Grade Pay Hierarchy and not in promotional hierarchy? - As contended by the Respondents, whether MACP scheme is disadvantageous to the employees in comparison to ACP scheme as long as the financial upgradation is granted in hierarchy of grade pay under MACP scheme? - HELD THAT:- The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008 - When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer.
The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court cannot substitute its views - In the present batch of cases where the Respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next grade pay is arbitrary and unjust; warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies; but as pointed out earlier, MACP Scheme itself is not under challenge.
The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the government's policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pal's case. The impugned orders cannot be sustained and are liable to be set aside.
Appeal allowed.
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2020 (3) TMI 1392
Rejection of Environmental Clearance (EC) granted to the Appellant for the development of an eight lane Peripheral Ring Road (PRR) connecting Tumkur Road to Hosur Road and totaling a length of 65 kilometers - Whether the PRR project commenced prior to the coming into force of the 2006 Notification? - Whether the PRR project falls within the scope of para 7(f) of the Schedule to the 2006 Notification obliging the project proponent to seek a prior EC? - Whether the Appellant has complied with the conditions stipulated in the 2006 Notification and the OMs issued by the MoEF-CC from time to time? - HELD THAT:- Following directions are issued under Article 142 of the Constitution:
(i) The Appellant is directed to conduct a fresh rapid EIA for the proposed PRR project;
(ii) The Appellant shall, for the purpose of conducting the rapid EIA, hire a sector-specific accredited EIA consultant;
(iii) The Appellant shall have due regard to the various deficiencies noted in the present judgment as well as ensure that additional precautions are taken to account for the prevailing state of the environment;
(iv) The Appellant shall ensure that the requisite clearances under various enactments have been obtained and submitted to the SEAC prior to the consideration by it of the information submitted by the Appellant in accordance with the OMs issued by the MoEF-CC from time to time;
(v) The SEAC shall thereafter assess the rapid EIA report and other information submitted to it by the Appellant in accordance with the role assigned to it under the 2006 Notification. If it is of the opinion that the Appellant has complied with the 2006 Notification as well as the directions issued by this Court, only then shall it recommend to the SEIAA the grant of EC for the proposed project. The SEAC and the SEIAA would lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment and other conditions it deems fit; and
(vi) The Appellant shall consult the requisite authority to ensure that no potential damage is caused by the project to the petroleum pipelines over which the proposed road may be constructed.
In moulding the above directions, this Court has factored into its decision-making calculus the fact that the appeal from the judgment of the NGT was filed by the project proponent and no appeal was filed by the Respondents. The order of the NGT directing the Appellant to conduct a rapid EIA is upheld - appeal disposed off.
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2020 (3) TMI 1391
Seeking restraint on Respondents and their agents/officers from taking any coercive steps including investigation under Section 212 of the Companies Act, 2013 - HELD THAT:- This Court, having considered the submissions of the learned counsel appearing for the respective parties is of the considered view that as on today, the cause in the writ petition does not survive as the respondents have already passed order dated 27.02.2020 under Section 212 of the Act. However, if the petitioner is aggrieved, he is at liberty to challenge the same, in accordance with law.
Petition disposed off.
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2020 (3) TMI 1390
Validity of decision of the RP for not short listing its Resolution Plan despite its plan is in compliance with Section 30(2) of the Insolvency and Bankruptcy Code, 2016 - validity of decision of RP for short listing and approving the CarVal’s Resolution Plan as successful Resolution Plan - whether the economic interest of this Applicant is getting prejudiced because his plan has not been admitted? - HELD THAT:- Once plan is shortlisted, if at all any remedy is assumed to be present, it is only with regard to the procedure, as to the procedure is concerned, in Regulation 39 of the CIRP Regulations it has been categorically mentioned that the Committee of Creditors shall evaluate the resolution plan received under Regulation 39 strictly as per the evaluation matrix to identify the best resolution plan, when evaluation matrix figures are there, that being the special subject, as long as there is no objection from any of the Committee of Creditors over the process of evaluation, if the evaluation matrix discloses marks identifying the best plan, the CoC will have to opt for the best plan provided it is viable and feasible. That is the subject matter of the CoC - In Regulation 39(3), when it comes to second clause, since approval is required to be given to the plan shortlisted, it was approved by the CoC with requisite majority. At this juncture, SSG subsequently coming with an unsolicited plan cannot become an impediment to proceed with the shortlisted plan.
Merely by having an open discussion in the CoC meeting and asking about SSG plan by some CoC Members having minority voting in the CoC cannot become a reason to invalidate the plan approved. Moreover, none of the CoC Members who abstained to the voting of CoC have filed any objection before this Bench. The point to be noted, these Applicants have not stated that D & P Report is factually incorrect - Once plans are submitted, it is the CoC to take a decision thereafter it is only an intimation to the plan Applicants as to whether their plan is shortlisted or not, it is nowhere mentioned in the Code that Plan Applicants have right to participate in short listing the plan applications.
Operational Creditor is not aggrieved of any of the actions of the CoC. Thumb rule i.e. followed in dealing with civil remedies is, when a person seeks remedy before Court of law, he shall be aggrieved by the action assailed in his application. When grievance is not present in its complaint, such person cannot seek relief before any Court of law. What does this Operational Creditor get on declaration of this entire process as null and void? Noble has not deliberated anything on it. Maybe it is either to help SSG or for some undisclosed reasons, which cannot be seen as grievance of Noble - It is not the case of Noble that the distribution to be reached to it under section 53 has not been provided, if that is the case, it could become the grievance of the Applicant. But that is not the case of this Applicant and that cannot be the case of the applicant.
Taking a lead for approval of a superior plan, which the CoC has approved with thumping majority considering it as feasible and viable cannot be called as SBI favoring Carval group - Application disposed off.
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2020 (3) TMI 1389
Revision u/s 263 by CIT - HELD THAT:- As applying the meanings attached, "may" implied to section 263 of the Income-tax Act mentioned above, the power has been vested with the Principal Commissioner, who may call for the records and may, after giving the assessee an opportunity of being heard, pass the order. Using of word in the present context "may" is capable of meaning "must" or "shall" where a discretion is conferred upon a public authority coupled with an obligation, thereby the use of word "may" has to be construed to mean a command.
In view of the provisions contained in section 263, the Commissioner is duty bound to give an opportunity of being heard, while exercising the revisionary jurisdiction, to the appellant while enhancing or modifying the assessment or cancelling the assessment or directing for fresh assessment in conformity with the provisions contained under section 263 of the Income-tax Act.
As applying the meanings attached, "may" implied to section 263 of the Income-tax Act mentioned above, the power has been vested with the Principal Commissioner, who may call for the records and may, after giving the assessee an opportunity of being heard, pass the order. Using of word in the present context "may" is capable of meaning "must" or "shall" where a discretion is conferred upon a public authority coupled with an obligation, thereby the use of word "may" has to be construed to mean a command.
In view of the provisions contained in section 263, the Commissioner is duty bound to give an opportunity of being heard, while exercising the revisionary jurisdiction, to the appellant while enhancing or modifying the assessment or cancelling the assessment or directing for fresh assessment in conformity with the provisions contained under section 263 of the Income-tax Act.
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2020 (3) TMI 1388
Seeking direction to RP to take on record and to consider the revised offer - HELD THAT:- As per the material placed before this Tribunal, the resolution plan submitted by the highest bidder has already been approved by the COC on 12.02.2020 with 100% voting and also submitted to this this Tribunal for its approval. It also transpires from the written Minutes of Meeting dated 11.02.2020 of the 5" COC meeting that the petitioner insisted the COC to provide the individual score and the bid amount of all the RPAs before its presentation of plan and confronted with the COC in not providing that information which is highly uncalled for. It also transpires from record that the petitioner abstained from attending the meeting on 12.02.2020 and despite their absence, the COC applied its mind on the earlier plan submitted by the petitioner and taken conscious call.
Since the resolution plan of the highest bidder has already been approved with 100% voting, the above application is not only infructuous but also liable to be rejected on account of latches and lack of bona-fides on the part of the petitioners.
Application rejected.
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9911796707
