Maintainability of Joint Application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- Different claim(s) arising out of different agreements or work order, having different amount and different dates of default, cannot be clubbed together for alleged default of debt, the cause of action is being separate. For the said reasons, it is held that the joint application preferred by appellant under Section 9 is defective, as distinct from incomplete, and, was not maintainable.
Learned counsel for the respondent also highlighted 'existence of dispute' in regard to non-completion of the project within the time, and, the counter-claim as made by the respondent -'Corporate Debtor'. However, in absence of any document enclosed, showing dispute raised prior to issuance of Section 8 notice, such issue is not decided.
Impugned order upheld though it is open to the appellant to move separate application in respect of separate work orders/ contracts, if not barred by limitation or delay and laches and if there is no dispute after following the procedure laid down under I & B Code and Rules framed thereunder - there are no merit in the appeal - appeal dismissed.
The Supreme Court of India dismissed the Special Leave Petition as withdrawn upon the petitioner's request. No appearance was made on behalf of the respondent.
Income from house property - Disallowance on account of interest expenditure paid by the assessee u/s. 24B - subsequent loan to repay earlier / original loan - repayment of housing loan is out of fresh borrowings - whether interest on subsequent loan taken for repayment of housing loan was eligible for deduction u/s. 24 of IT Act against the income from housing property? - HELD THAT:- Interest on subsequent loan to repay the earlier housing loan is also allowable subject to the following conditions:
A. the assessee has to establish that the subsequent loan is to repay the earlier housing loan
B. deduction on interest is allowable only to the extent of interest on earlier loan used for acquiring or constructing the housing property and not on the unpaid interest on such earlier housing loan or subsequent housing loan to repay the earlier housing loan.
We set aside the order of CIT(A) for all the 5 years and restore the matter to the file of the CIT(A) for fresh decision with the direction that he should examine the claim of the assessee in line with above discussion and deduction on account of interest should be allowed to the extent the assessee is able to establish that the subsequent loan on which interest is being claimed is used for the purpose of repayment of earlier housing loan and such claim of interest should be restricted to the extent of actual amount of earlier/new housing loan used for acquiring / constructing housing property and it should not be for unpaid interest. The ld. CIT(A) should pass necessary order as per law as per above discussion after providing adequate opportunity of hearing to the assessee- Appeals filed by the assessee are allowed for statistical purposes.
Allowable revenue expenditure - Addition towards purchase of movies, programme production expenses, amortization of film and Broadcast rights, consumables and Media expenses - HELD THAT:- It is brought to notice of the Bench that an identical issue came before this Tribunal for assessment year 2011-12 in assessee's own case [2016 (2) TMI 928 - ITAT CHENNAI] found that the similar expenditure incurred by the assessee has to be allowed as a revenue expenditure. CIT(A) in fact, allowed the claim of assessee by placing reliance on the Order of Tribunal for the earlier assessment years 2004-05 to 2009-10 [2013 (10) TMI 1368 - ITAT CHENNAI]. Therefore, this Tribunal do not find any reason to interfere with the order of Ld.CIT(A). Accordingly, the order of Ld.CIT(A) is confirmed in the departmental appeal.
Deferred revenue expenditure - HELD THAT:- As decided in own case[2013 (10) TMI 1368 - ITAT CHENNAI] the monies received are shown as deferred revenue in the year of receipt and are offered as income in the year when programme is aired. .CIT(A), in fact followed the Order of Tribunal in assessee's own case, therefore, this Tribunal do not find any reason to interfere with the order of Ld.CIT(A). Accordingly, the order of Ld.CIT(A) is confirmed in the departmental appeal.
Disallowance u/s.40(a)(ia) - assessee submitted that recipient of the amount has already paid the tax, therefore, it is to be allowed during this year - As per DR CIT(A) directed the Assessing Officer to allow the claim of assessee in the year in which the tax was deducted - HELD THAT:- The fact remains is that the assessee has not deducted the tax. It is not in dispute that the assessee was not liable to deduct tax. When the recipient has paid the money, there may not be any disallowance during the year under consideration. In case, the recipient has not paid the tax during the year under consideration, then as rightly directed by the Ld.CIT(A), the claim of assessee is to be allowed in the year in which the tax is paid to the Government exchequer. With the above observation, this Tribunal do not find any reason to interfere with the order of Ld.CIT(A) and accordingly the same is confirmed.
Condonation of delay - delay of 744 days - sufficient cause for delay - HELD THAT:- A liberal view ought to be taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the delay. The delay of 744 cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions.
Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd [1961 (5) TMI 54 - SUPREME COURT] has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands.
In the present case, the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays. The delays are not properly explained by the assessee. There is no reason for condoning such delay in this case. The delay is nothing but negligence and inaction of the assessee which could have been very well avoided by the exercise of due care and attention. Though the assessee has said that the divorce proceedings initiated by her spouse were the reason for delay in filing these appeals, there is no iota of evidence of such proceedings before any Court. Hence, there exists no sufficient or good reason for condoning inordinate delays of more than 744 days in filing appeal before us. Accordingly, these appeals are dismissed as barred by limitation.
We accordingly decline to condone the delay of 744 days, and dismiss these six appeals of the assessee as barred by limitation.
Assessment made under section 153A/153C - Addition u/s 68 - HELD THAT:- In this case, admittedly, a search and seizure operation was conducted on 18.12.2012. Further, a search and seizure action was also carried in the case of Shri Praven Kumar Jain group on 01.10.2013, who was stated to be one of the leading entry providers operating in Mumbai, indulging in providing accommodation entries like bogus purchases, sales, unsecured loans, share capital, etc. In his statement recorded on oath u/s 132(4) Shri Praveen Kumar Jain has admitted that he was indulged in providing accommodation entries and also explained the complete modus operandi of providing such entries.
Upon notice u/s 133(6) of the Act issued to the eight companies, on the basis of replies, records available and data available in public domain, the AO has observed that all the companies involved are basically investment companies existing only in paper and have no activity as such and practically have no fixed asset. All the companies have filed their returns showing meagre income and therefore, the creditworthiness of the companies has not been proved. Further, most of the companies claimed to have received share application money at a huge premium to its face value.
In others the sources of funds have been shown as sale of bogus investments of unquoted equity shares. As per Website information, the directors of above named companies are also directors in other companies - apparent strength of documentary proof of returns of income filed with RoC, Income Tax Department and opening of bogus bank accounts from bogus addresses and subsequent transactions through banking channels are emboldened the entry operators and the beneficiary entities to embark upon such a complex, fraudulent and fictitious process involving a huge number of companies and other entities.
With regard to retraction by Shri Praveen Jain and his associates on the statement recorded on oath under section 132(4) of the Act, the subsequent observations made by the Assessing Officer and reproduced hereinabove, clearly indicates that the said retraction is nothing but an afterthought and more so, the entire process is fictitious and fraudulent process for evading taxation. It may be noted that the Hon'ble Gauhati High Court in the case of Greenview Restaurant [2002 (7) TMI 13 - GAUHATI HIGH COURT] has expressed disapproval on retraction of a statement after a considerable time lag. In the case on hand, the retraction has been made after 7-8 months by way of mostly common affidavits containing various factual inaccuracies furnished by the associates working under the control of Shri Praveen Kumar Jain and the statements have been signed by them without correlating the contents with the facts of their own cases.
Since the assessee could not proved the genuineness, creditworthiness and identity of the companies, as these companies might have been existing on papers or in real sense at the time of registration, but were specifically found to be non-existence, we are of the considered opinion that the Assessing Officer has validly made the assessment under section 143(3) r.w.s. 153A & 153C of the Act for both the assessment years - We set aside the order of the ld. CIT(A) and direct him to adjudicate the grounds raised by the assessee on merits - Appeals filed by the Revenue are allowed for statistical purposes.
Estimation of income - bogus purchases - HELD THAT:- The assessee has failed to provide trail to goods purchased. Where on the one side the Department has raised serious doubt over the purchase of goods, the sale of goods have not been disputed. There cannot be sale unless there has been in flow of goods in the form of purchase - the entire amount of bogus purchases cannot be added. There has to be some estimation of GP. The assessee has furnished a chart giving the details of sale, purchase, gross profit, GP ratio and NP ratio for assessment years 2007-08 to 2011-12. Reliance cannot be placed on the figures furnished by the assessee as the purchases in the three assessment years are under the shadow of doubt.
As decided in M/s. Chhabi Electricals Pvt. Ltd. Vs. Deputy Commissioner of Income Tax [2017 (6) TMI 514 - ITAT PUNE] estimated addition @ 10% of the alleged hawala purchases. In the aforesaid bunch of appeals the additions were made on the basis of information received from Sales Tax Department. The purchases made by assessee from hawala dealers were held to be bogus and Assessing Officer made addition of the entire such purchases. In first appeal, the Commissioner of Income Tax (Appeals) granted partial relief to the assessee. Thereafter, the assessee carried the matter in second appeal before the Tribunal. The Tribunal categorized the appeals on the basis of facts and thereafter estimated the addition @ 10%.
We are of considered view that addition on account of bogus purchases if estimated @ 10% of such purchases, would meet the ends of justice. We hold and direct accordingly. Thus, all the three appeals of the assessee are partly allowed in aforesaid terms.
Deduction u/s 80-IC - proof of manufacturing activity - As per revenue assessee has failed to prove any manufacturing activities during the years under assessment but it was only doing job-work for its sister concern - HELD THAT:- Undisputedly, the assessee is manufacturing crank shaft. It is also not in dispute that assessee company is registered with Department of Commercial Tax, Government of Uttarakhand as a wholly manufacturing unit as per certificate of registration, available. It is also not in dispute that the assessee company is registered as a Small Scale Industry Unit (SSI Unit), registered with Department of Industry.
Thus it is difficult to accept the contention raised by the ld. DR that the assessee is not into manufacturing activities and that raw material is coming and going out from the assessee unit only with a different nomenclature. From the process flow chart it is proved on record that comprehensive manufacturing activities are being carried out by the assessee company, which has never been disputed by the AO. It does not matter if the entire sale of the manufactured products as has been made by the assessee company, to its sister concern and it cannot be deprived from claiming deduction u/s 80-IC on this score.
Thus it is settled principle of law that for arguments sake, even if the assessee company is assumed to be into job-work even then it cannot be denied the benefit of section 80-IC of the Act as has been held by Hon’ble Delhi High Court in judgment cited as CIT- III vs. Sadhu Forging Limited [2011 (6) TMI 9 - DELHI HIGH COURT]
When the assessee is manufacturing crank shaft the process of manufacturing the same is held to be a manufacturing activity by Hon’ble Madras High Court rendered in a judgment cited as CIT vs. Tamil Nadu Heat Treatment and Fetting Services (P.) Ltd. [1998 (2) TMI 71 - MADRAS HIGH COURT]
Thus CIT (A) has arrived at legal and logical conclusion that the assessee company is engaged in manufacturing activities and is entitled for deduction u/s 80-IC. - Decided in favour of assessee,
Unexplained capital introduction by the assessee - assessee has failed to bring on record any evidence to prove the genuineness of the capital introduction - HELD THAT:- On perusal of the assessment order itself shows that, “the assessee has brought on record ITR of Vinay K. Naik, Director of the Company, who has made capital introduction for AY 2009-10” but the AO has simply made an addition by observing that, “the assessee has simply said that the investment has been made from his saving and has submitted ITR for AY 2009-10 only and nothing else”.
When the Director of the company has brought on record his ITR for AY 2009-10 it was for the Revenue to call supporting documents, if needed, but he has not preferred to do so and impliedly admitted the genuineness of the capital introduced by the assessee. So, in these circumstances, we are of the considered view that there is no illegality or perversity in deleting the addition.
TDS u/s 194J - ‘professional charges’ without deducting any TDS - HELD THAT:- CIT (A) deleted the addition on account of making payment of professional fees to Shri Sanjay Singh, Shri Bhushan Bapat and Shri Subodh Agarwal keeping in view the fact that the said payment was admittedly deposited in Government accounts late but the same has been deposited prior to filing of the income-tax. So, there is no illegality in making the deletion by ld. CIT (A).
So far as question of addition of addition made to M/s. Adecco is concerned, since the said payment is made to M/s. Adecco, a labour supply agency, no tax was required to be deducted and this fact has already been intimated to the AO, and as such provisions contained u/s 194J of the Act are not attracted in this case. So, again ld. CIT (A) has validly deleted the addition. Consequently, ground determined against the Revenue.
Preliminary decree in respect of 3rd item of the property namely deposit in the bank - legal heirs of late Durairaj - Validity of alleged marriage between Kamalambal and Durairaj - bigamy - Whether the first item of the property belonged to Durairaj and if so, the plaintiffs are entitled to share?? - entitlement to partition - HELD THAT:- When the evidence of DW1/first wife of Durairaj, when carefully analysed, in the chief examination, she has stated that Kamalambal was never given a status as wife of Durairaj. DW1 also admitted that her first child was born in the year 1955 and immediately died after 9 days. Thereafter, the second defendant born in the year 1958. Afterwards 3rd child was born and died after 5 days. These events, infact probablised the plaintiffs' case that in order to have a male child, Durairaj infact has decided to marry Kamalambal. The cross-examination of DW1 also clearly show that when Kamalambal was at the age of 16 there was illegal connection between her husband and Kamalambal and she has also stated that Kamalambal was living in Ganapathinagar house from the year 1957 till date. Further, she has also admitted that she never objected Kamalambal living in Ganapathinagar house. She also admitted that only her husband has kept Kamalambal in Ganapathinagar house. The cross-examination clearly indicate that Kamalambal and Durairaj was living together from the year 1957.
The conduct of DW1 probablise the plaintiffs' case that there was a second marriage to Durairaj and Kamalambal in the year 1960 itself. Further, in the cross-examination of DW1 also, she has not denied the specific question that from 1960 onwards her husband was living with Kamalambal. What she tried to say is that her husband also used to come to Abraham Panditham street, where DW1 was living. These facts clearly shows that from the year 1960, Kamalambal and Durairaj, were living together and evidence of PW3, PW4, PW5, PW7 and PW9 clearly probablised the plaintiff case that there was a 2nd marriage performed between Durairaj and Kamalambal.
It is to be noted that DW1 is the sister of an important personality in Thanjavur. As per the evidence, her brother is also politically connected and also Member of Parliament for some time. Therefore, the witnesses turning hostile may be due to various reasons. The same is not germane for consideration. In the entire evidence of PW8, the chief examination itself is sufficient to prove Ex.A30. In view of the evidence of PW8 in chief, one of the attesting witnesses coupled with the non denial of the signature of DW1 in the gift deed/Ex.A30, there is no difficulty for this Court to hold that Ex.A30 has been executed by DW1, infact DW1 has not challenged the document in all these days. This is also one of the grounds to hold that this document has been duly executed by herself.
The factum of marriage not only clearly established by the oral evidence but also by the documentary evidence. The conduct of DW1 treating the mother of the plaintiffs as life partner of her husband and executed the gift deed would go to show there was a second marriage - Further conduct of first wife not objecting for such relationship of her husband from from the very inception i.e. from the year 1960 till his death, and also consideration of natural events in the family of Durairaj in entirety, this Court also draw the presumption under Section 114 of the Indian Evidence Act to hold that there was a second marriage. Further the oral evidence on the side of the plaintiffs particularly, PW4, PW5, PW7 and PW9, also not assailed in the cross-examination. That apart, as stated above, from the documentary evidence and the conduct of the party, one could see that there was a marriage between Kamalambal and Durairaj.
The amount deposited is not lying with the 3rd defendant bank as admitted by both sides and the above factum was also informed to the plaintiffs in the year 1989 itself and there is no amount lying with the third defendant bank, granting preliminary decree for the amount which was not in existence is liable to be interferred - Application disposed off.
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The petitioner is the Operational Creditor who has initiated Insolvency Resolution Process against the Respondent No.1 Company under Section 9 of the Insolvency & Bankruptcy Code. The counsel for impleading respondent reported no objection. There is no objection filed from the Company.
Since the petitioner/Operational Creditor has furnished all information required for initiating Insolvency Resolution Process against the Respondent-1 Company, this Bench is satisfied that the corporate debtor failed to discharge the liability mentioned in this Company Petition filed by the operational creditor under section 9 of Insolvency and Bankruptcy Code, 2016 resulting occurrence of default for an amount of ₹ 1,18,34,618.66/-, this Bench admits this Petition under section 9 of Insolvency and Bankruptcy Code, 2016 declaring moratorium - Petition admitted.
Rectification of the Register of Members of Appellant company - Seeking recording of shares in question in the name of the Respondent Mrs. Adesh Kaur - HELD THAT:- The Appellant while acknowledged that the 1st Respondent/Petitioner may be a victim of fraud, the Tribunal noticed that certain procedure were not followed and that duplicate transfer shares had already been issued and transferred and dematerialised in favour of the 8th Respondent - Mr. Vikas Tara Singh. Thus, there being an allegation of impersonation and forgery of signature and fraud lodged already levelled by the 1st Respondent/Petitioner in respect of which a criminal complaint has been lodged and is pending with the Economic Offences Wing Cell of Mumbai Police.
The matter has also been brought to the notice of SEBI, in the light of the decision of the Hon'ble Supreme Court in AMMONIA SUPPLIES CORPN. (P.) LTD. VERSUS MODERN PLASTIC CONTAINERS (P.) LTD. [1998 (9) TMI 427 - SUPREME COURT] it was not a fit case for Tribunal to exercise its power under Section 59 of the Companies Act, 2013 solely on the ground that the original certificates are in the physical possession of the 1st Respondent/Petitioner.
This order will not come in the way of the 1st Respondent/petitioner to move before a Court of Competent Jurisdiction for appropriate relief, including declaration of title over the shares in question and/or for declaration that the transfer in favour of the 2nd Respondent or the 8th Respondent are illegal, being based on impersonation and fraud - petition dismissed.
Matter listed today for production by urgent mentioning by the Advocates for the respondent - HELD THAT:- It appears that the company has defaulted in payment of the installment on the consent terms as a result the petition now stands admitted and advertised. Counsel for the respondent seeks further time to pay the amount. The order of admission will have to be recalled which will require further advertisement. In order to enable the petitioner to obtain instructions on the mode of payment of the amount and in the event of parties agreeing to file revised consent terms, stand over to 24th August, 2017 for directions.
Assessment u/s 153A - Proof of incriminating material found during the search - HELD THAT:- Tribunal noted that the return filed by the assessee in the ordinary course was accepted without a scrutiny and the time limit for scrutiny assessment was over. Essentially therefore what the Assessing Officer had done was to realign the income from capital gain to business income. Since this was without the aid of any material unearthed during the search, the Tribunal reversed the assessment order as confirmed by the Commissioner of Income Tax (Appeals).
As per the settled law, the approach before the Tribunal cannot be faulted particularly when the Revenue is unable to dispute the factual findings of the Tribunal. We notice that there are additional questions raised by the Revenue which pertained to the actual additions. However, when we hold the main issue against the Revenue, it is not necessary to enter into the subsidiary questions.
CENVAT Credit - movement of clinker by the assessee does not include the removal from the place - should be treated as “place of removal” in terms of the statutory provisions in the Central Excise Act - HELD THAT:- There are no substantial question of law arises at the instance of the Revenue in this appeal, to be answered in its favour.
Validity of claim added by way of amendment was barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) - whether the claim sought to be added by way of amendment was barred by time? - HELD THAT:- The dismissal of the separate suit filed for the relief which was sought to be added by way of amendment in the pending suit, on the ground of being barred by Order II Rule 2 of the CPC, would not bar the amendment in the pending suit, to claim the same relief. Dismissal of the separate suit filed for damages on the ground of Order II Rule 2 of the CPC in my view would not constitute res judicata within the meaning of Section 11 of the CPC, to bar the respondent / plaintiff from claiming by way of amendment the relief which was held to be barred by Order II Rule 2 of the CPC - Dismissal of a suit as barred by Order II Rule 2 of the CPC would not amount to claim of damages having been heard and finally decided by the Court.
There is no merit in the plea of the order allowing amendment to be bad for the reason of the claim sought to be made by amendment being barred by Order II Rule 2 of the CPC.
Time Limitation - HELD THAT:- The senior counsel for the petitioner / defendant contends that there is a difference in a claim for damages in a suit for specific performance of an Agreement of Sale and damages for defamation for which a special period of limitation has been provided - it is clear that the question of limitation is not such, which can be said to be apparent for the amendment to be denied.
Attachment of all assets of Roofit Industries Ltd. - section 252/10 of the Insolvency and Bankruptcy Code 2016 and Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules 2016 - HELD THAT:- Section 14 of the MPID Act, provides that the provisions of said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or instrument having effect by virtue of any such law. Similar provision is contained in sec.238 of the I.B.C. which also states that provisions contained in said Code shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
This Court cannot pass further orders under the MPID Act, in respect of the attached properties belonging to Roofit Industries.
Validity of Tamil Nadu Entry Tax Act - levy of entry tax on Tobacco - HELD THAT:- In the light of the judgment of a Nine Judge Bench in the case of JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT], the impugned judgment of the High Court is set aside and it is held that the Tamil Nadu Entry Tax Act is a valid enactment. However, it is made clear that insofar as period from 27.03.2002 to 01.04.2007 is concerned, the State of Tamil Nadu shall not realise the entry tax from the respondent(s) with regard to Tobacco product as for this period levy is found to be discriminatory in nature qua the aforesaid product.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - arrears of salaries due have not been paid - Operational Creditors - service of demand notice - existence of debt and dispute or not - HELD THAT:- Admittedly, no demand notice under Section 8 was given by any of the individual respondent-'Operational Creditor', either in Form-3 or Form-4 of the Adjudicating Authority Rules. All the notices, which are same and similar and all dated 27th February, 2017, were issued by the same advocate, on behalf each of the respondents. Only the amount of default shown therein are varying. Learned counsel for the respondents accepts that apart from advocate notice, no separate notice under Section 8 were individually given by any of the respondents.
Service of demand notice - HELD THAT:- It is true that no authorisation on behalf of any Company, or firm is required to be given, but the individual(s) are also required to give notice under Section 8 in Form-3 or Form-4 under their signatures with clear understanding and request to repay the unpaid 'Operational Debt' (in default) unconditionally, in full, within ten days from the receipt of the letter, with further intimation that on failure, the said employee(s)/ workmen shall initiate a Corporate Insolvency Process in respect of the 'Corporate Debtor'. If such notice in Form-3 or Form-4 with the aforesaid stipulation is served on the 'Corporate Debtor', the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt', otherwise like any normal pleader notice/advocate notice or like notice under Section 80 of the Code of Civil Procedure, 1908 or notice for initiation of proceeding under the Industrial Disputes Act, 1947, the 'Corporate Debtor' may not take it seriously and may decide to contest the suit/case, if filed, before the appropriate forum - where the claim is made under Section 8 of I&B Code, in such case, the 'Corporate Debtor' will understand the seriousness that it cannot contest the claim, except in a case where a dispute has already been raised, prior to the issuance of notice under Section 8.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Inter-corporate loan falls under Section 5(8) (f) of the IBC or not - Section 7 of Insolvency and Bankruptcy Code 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- With regard to the contention/submission of the Respondent, the amount disbursed to Corporate Debtor is not part of the balance sheet of Financial Creditor, while perusing the records submitted by the Corporate Debtor itself, we have observed / found the Audited Reports for year ending 31-12-2009 of Quinn Logistics India Pvt. Ltd (Financial Creditor) under the heading current assets / loans and advances, an amount of ₹ 63,15,88,023/- was shown as loans and advances and also previous year ending 31-12-2008, an amount of ₹ 74,80,26,336/- was also shown as loans and advances. While further analyzing the schedules of balance sheet, the same was discussed in Schedule-8 and said amount was against the name of Mack Soft Tech Pvt. Ltd. i.e. the Corporate Debtor, therefore, even in this count also the Corporate Debtor have failed and in addition to the balance sheet, the Financial Creditor have also submitted the bank statement, establishing the proof of loans disbursement to Corporate Debtor.
The Corporate Debtor was enjoying Inter Corporate Loan granted by the Financial Creditor as interest free loan for quite a number of years and they should be happy with the same. It is also unique to observe that the borrower after enjoying the interest free loan for so many years instead of repaying the debt - The Financial Creditor was a holding company of the Corporate Debtor in the beginning and during the course of period the loans were disbursed free of interest. Section 5(8) of IBC Code also states that the Financial debt means a debt along with interest if any.
The Accounting Standard relied upon by Corporate Debtor is not related to the current facts & circumstances of the case since the accounting standard states that "when the obligation specified in the contract is discharged or cancelled or expires - Apparently, in the instant case there are no obligations specified, more over the petitioner itself accepted that there is no written agreement between the petitioner and Corporate Debtor. Further, the term "Expires" stated in the aforesaid accounting standard, there is no corresponding provision stating that the same is governed by Limitation Act, 1963. Therefore, even this contention of the respondent does not help them.
The Bench is of the prima facie view that to avoid disputes like in this case it would be advisable/beneficial/for audit trials for all to enter into an agreement with detailed terms & conditions including the schedule of the repayments, interest charged etc. However, in the present case, the Financial Creditor and Corporate Debtor had Holding/Subsidiary Company relationship and the Financial Creditor also submitted the bank statements towards disbursement of loan/money to Corporate Debtor and in balance sheet for the year ending 31.12.2009.
The Corporate Debtor owes ₹ 62,90,45,905/- therefore, debt and default has been established by the Financial Creditor - Financial Creditor has to receive ₹ 62,90,45,905/- which is the debt &default amount. Therefore, there is a default by the Corporate Debtor and thus the Financial Creditor is entitled to claim relief under section 7 of the IBC, 2016.
Nature of conditions which may be imposed Under Section 438 of Code of Criminal Procedure, 1973, while granting anticipatory bail - HELD THAT:- It is well settled legal proposition that in interpreting a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) should be preferred to an interpretation that would not promote the object - There is no dispute that Sub-clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase 'interest of justice' as used under the Sub-clause (c) of Section 437(3) means "good administration of justice" or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive interpretation.
Coming back to the case at hand, from the perusal of the impugned order it is clear that the court exceeded its jurisdiction in imposing such arbitrary conditions. Some of the conditions imposed are highly onerous and are absurd. Such onerous anticipatory bail conditions are alien and cannot be sustained in the eyes of law. The conditions imposed appear to have no nexus with the good administration of justice or advancing the trial process, rather it is an over-zealous exercise in utter disregard to the very purpose of the criminal justice system.
The impugned order passed by the High Court is set aside and the interim protection granted to the Petitioner by this Court on 07.02.2017 is made absolute - Appeal disposed off.
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