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Showing 81 to 100 of 1677 Records
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2019 (12) TMI 1600 - ITAT DELHI
Disallowance @10% of the dividend u/s 14A - case of the appellant is that all the scripts of investments are held by it as stock in trade, therefore, no disallowance u/s 14A can be made - DR submitted that provisions of section 14A will apply even if the assessee has shown the investment generating exempt income as stock in trade - HELD THAT:- As submitted that investments are held by assessee as stock in trade. In the present case the issue is squarely covered by the decision of Maxoop Investment Ltd [2018 (3) TMI 805 - SUPREME COURT] as held that when the share are held as stock in trade, it becomes the business activity of the assessee. Whether the dividend earned or not is immaterial. It would be “quirk of fate‟ if the dividend is received. The Hon‟ble Supreme Court thus held that in such cases there cannot be any disallowance u/s 14A of the Act. Thus, the fact is not denied that assessee is holding exempt income generating investment as stock in trade, the disallowance made by the ld Assessing Officer and confirmed by the ld CIT(A) is not sustainable. Accordingly, we direct the ld Assessing Officer to delete the disallowance u/s 14A of the Act.
Deduction u/s 36(1)(viii) -Addition of interest on housing loans - HELD THAT:- In the present case the methodology adopted by the assessee is consistently followed for last eight years. Same was accepted by the revenue without any objection. The only issue is with respect to how the profit of the business for the purpose of long term housing finance shall be worked out. The only issue is that assessee is computed with respect to the total income with respect to the interest income whereas the ld AO has applied the above ratio to the total receipt. When the method has been consistently accepted for the above year we do not find any reason to defer from that. In view of this we do not find any infirmity in allowing the assessee claim of deduction u/s 36(1)(viii) of the Act applying the ratio of 62.75%. In the result we do not find any merit in ground No. 1 of the appeal. Hence, it is dismissed.
Disallowance u/s 14A - CIT(A) deleted the disallowance as per Rule 8D but retained 10% of such disallowance - HELD THAT:- AO has not recorded any satisfaction with respect to the expenditure incurred in relation to exempt income. Therefore, on this account the disallowance cannot be made by the ld Assessing Officer under that section without recording satisfaction that assessee has incurred some expenditure in relation to exempt income. Further as held by us in appeal of the revenue for AY 2009-10 that assessee is holding these investments as stock in trade no disallowance can be made. For the reasons given by us in the appeal of the assessee wherein, we have directed to delete the disallowance, this ground of appeal of revenue is also deserves to be dismissed. Accordingly, ground No. 2 of the appeal is dismissed.
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2019 (12) TMI 1599 - CALCUTTA HIGH COURT
Suit for infringement of this trademark and passing off - first and foremost point is that ‘Shyam’ is another name of Lord Krishna, no exclusive right can be claimed by anybody over this mark - HELD THAT:- Section 125 says that where in a suit for infringement of a registered trademark the validity of registration is questioned by the defendant, the application under Section 57 has to be made only to the Appellate Board. Sub-section 2 provides that subject to sub-section 1 if an application for rectification of the register is made to the Registrar under Section 57, if he thinks fit shall refer the application at any stage of the proceedings to the appellate board. The effect of this section, inter alia, is that the question of validity of a trademark is to be decided by the tribunal.
The court retains its powers to decide the question of validity on a prima facie basis, pending this decision. When this question of validity is raised and referred to the tribunal or it is pending before the tribunal, the interlocutory application can be disposed of but the suit has to remain stayed till the disposal of the lis by the Appellate Board.
This court cannot say as an infallible principle of law that registration of the word ‘Shyam’ was invalid and its registration should be cancelled. The respondent has to prove, by leading cogent evidence, before the Board, that indeed the name ‘Shyam’ refers to God only, is not distinctive of the appellant, is generic and common. Hence, its registration was invalid. The respondent has not been able to establish this, even prima facie - The respondent has also not been able to produce any significant evidence to show that it was carrying on business using the subject trademark evidence by sales figures, prior to registration of the appellant’s mark or prior to the date from which the appellant claimed first user of the mark.
The impugned ad-interim order was made only on the basis of the petition. Before us there is additional evidence in the form of the affidavit-in-opposition and the affidavit-in-reply. Some supplemental papers have also been filed. Therefore, the case is considered on the basis of the petition as well as the additional evidence produced. This court is not called upon only to evaluate whether the exercise of discretion by the learned trial court was right or wrong. This court is duty bound to pass a suitable interim order, pending trial of the suit. In doing so, this court has to put itself in a position as if it was moved to pass an interim order in the suit.
The prima facie case on facts theoretically is in favour of the appellant. However, for atleast four years from December, 2015 the respondent has been manufacturing and selling TMT bars using the trademark ‘Shyam’, without any active interference by the appellant. Prima facie, it is opined that there is no acquiescence to its use on the part of the appellant but inaction and delay in taking action.
The respondents shall be permitted to clear their exiting stock by manufacture and sale of their products with the said existing subject trademark till 30th April, 2020 - application disposed off.
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2019 (12) TMI 1598 - TELANGANA HIGH COURT
Assessment u/s 153A - HELD THAT:- High Court may be pleased to issue a writ, order or direction especially in the nature of writ of Mandamus calling for the relevant records from the Respondents, and (i) declaring the reason to believe purportedly recorded by 2nd and 3rd Respondents u/s. 132(l) of the Income Tax Act, 1961 as being arbitrary, illegal, without jurisdiction, mala fide and for collateral purpose and (ii) declare the warrants of authorization dated 03rd January, 2018 and 08th January, 2018 issued by the 2nd and 3rd Respondents respectively as arbitrary, without jurisdiction and illegal, and (iii) declare the consequent searches on the Petitioners premises as arbitrary, without jurisdiction and illegal and (iv) consequently, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A for the assessment years 2012-13 to 2017-18 and (v) without prejudice to above, no incriminating material seized during the course of search, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A of the Act for the Assessment Years 2012-13 to 2017-18 and (vi) without prejudice to above, the statement recorded from farmers/ growers do not constitute incriminating material, quash the notices dated 24th December, 2018 issued by the 4th Respondent u/s. 153A for the Assessment Years 2012-13 to 2017-18, and (vii) without prejudice to above, the assessment for the AY 2015-16 could not be subject to proceeding under section 153A of the Act, quash the notice dated 24th December, 2018 issued by the 4th Respondent u/s. 153A of the Act for the AY 2015-16 and (viii) restrain the Respondents from initiating any further action pursuant to the said searches.
Stay the notices issued by the 4th Respondent u/s. 153A for the assessment years 2012-13 to 2017-18 pursuant to search and seizure proceedings - The interim order granted earlier is extended upto 31.12.2019 Post the WP on 23.12.2019.
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2019 (12) TMI 1597 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking restoration of name of company in the Register of Companies - it is alleged that appellant company had failed to file financial statements and annual returns since 2011-12 - Section 248 of Companies Act, 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 - HELD THAT:- Undisputedly the appellant company has not filed financial statements and returns since 2011-12 onwards. ROC has served the STK-1 notice on 11.3.2017 on appellant company. Thereafter STK-5 notice dated 27.4.2017 was served and when he has not received any response then as per STK-7 Company Appeal (AT) No. 203 of 2019 notice dated 11.7.2017 the name of the appellant company was struck off from the register of companies - Except the failure to file the financial statements and returns there is no complaint against the appellant company. Appellant has placed on record the report and financial statements from 2011-12 before the NCLT as well as before this Tribunal.
On going through the reports and statements, it cannot be said that the appellant company is not carrying on any business since 2011-12. The appellant company is having assets and liabilities. In such circumstances, the order passed by the NCLT is not sustainable in law.
Appeal allowed.
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2019 (12) TMI 1596 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time Limitation - guarantor of the loan is the individual and not the corporate person - HELD THAT:- Section 5A of IBC, 2016 states Corporate Guarantor means the corporate person who is surety in contract guarantee to a Corporate Debtor. Section 3(8) of IBC defines Corporate Debtor means corporate person who owes a debt of any person. In this case, It is not in dispute that by virtue of deed of guarantee, the Corporate Debtor herein who is the corporate person owes debt to the Bank. Hence, the Corporate definition in Section 5A of IBC, 2016 of corporate guarantor cannot be considered for exclusion of this proceeding from consideration for a simple reason that the definition Is just explanatory definition as to who could be called as corporate guarantor. In this case, the Corporate Debtor is the guarantor of the individual.
The definition of the corporate guarantor relied on by him in Section 5A cannot be used to show applicability or Inapplicability of provisions of IBC against him as it hi just explanatory definition - the Financial Creditor proved that the financial debt is due and payable by the Corporate Debtor and he has committed default in paying the same.
The application is filed well within period of limitation - application filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s Surana Metals Ltd. is hereby admitted - moratorium declared.
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2019 (12) TMI 1595 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCH
Approval of Resolution Plan - section 31(1) of the IBC, 2016 - discharge or provide immunity from all the liabilities/Disputes/proceedings/penalties/suits/attachments/cases whether civil or criminal filed against the Corporate Debtor whether accounted/known or not on payment of the agreed consideration by Resolution Applicant - approval for waiver of Cost of transfer if any payable under respective statues - HELD THAT:- Section 30(6) of the Code enjoins the resolution professional to submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. Section 31 of the Code deals with the approval of the resolution plan by the Adjudicating Authority, if it is satisfied that the resolution plan as approved by the committee of creditors under section 30(4) meets the requirements as referred to in section 30(2) - the Resolution Plan includes a statement under regulation 38(lA) of the CIRP Regulations as to how it has dealt with the interest of the stakeholders in compliance with the Code and Regulations thereunder.
The 'Resolution Plan' filed with the Application meets the requirements of Section 30(2) of the I&B Code, 2016 and Regulations 37, 38, 38(1A) and 39 (4) of IBBI (CIRP) Regulations, 2016. The 'Resolution Plan' is also not in contravention of any of the provisions of Section 29A. Hence, this Adjudicating Authority is satisfied that the Resolution Plan is in accordance with Law - the Resolution Plan approved shall not construe any waiver to any statutory obligations/liabilities arising out of the approved Resolution Plan and same shall be dealt in accordance with the appropriate Authorities as per relevant Laws.
Application disposed off.
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2019 (12) TMI 1594 - APPELLATE TRIBUNAL FOR PROHIBITION OF BENAMI PROPERTY TRANSACTIONS ACT, AT NEW DELHI
Benami transaction - respondent submits that in view of Section 27 of the PBPT Act, 1988 so long as the appeal is pending, no confiscation of the property can be done without issuing a proper show cause notice under Section 27 of the Act and there is no need of issuing such notice in view of the pendency of the present appeal - HELD THAT:- It appears that subsequent to the order passed by the Adjudicating Authority which is impugned before this Appellate Tribunal, the concerned authority under the said act has issued the show cause notice dated 18.10.2019 giving opportunity as stated above. In the said notice, the concerned authority i.e. Principal Director, Income Tax Department, Lucknow has categorically mentioned about the order passed by the Adjudicating Authority in PBPT Act, 1988.
In the above circumstances, the appellant is apprehending for prosecution and confiscation in the PBPT Act, 1988. In view of the above, appellant has a prima facie case that the operation of the impugned order be stayed till the next date of hearing. It is clarified that this order will not come in the way if any prosecution case is filed.
Reply is not on record. The counsel for the respondent has undertaken to file the same in the registry during the course of the day.
The copy of the same has been served on other side. The counsel for the appellant does not want to file rejoinder. The right to file the rejoinder is closed. Parties are allowed to file the written synopsis by the next date. List for final hearing on 27th May, 2020.
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2019 (12) TMI 1593 - TELEGANA HIGH COURT
Maintainability of appeal before Appellate Tribunal - HELD THAT:- If the revision petitioner intends to assail the impugned order, he has to file an appeal before the appellate Tribunal.
Under these circumstances, the Civil Revision Petition is dismissed.
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2019 (12) TMI 1592 - CESTAT MUMBAI
CENVAT Credit - input services - Goods Transport Agency Service - place of removal - period prior to 01/04/2008 - invocation of extended period of limitation - HELD THAT:- The facts of the case are not in dispute. The appellant has received the service prior to 01/04/2008 and availed the credit in November 2009. As, at the time of receiving the service, there was no bar on availment of CENVAT credit on the service in question. In the circumstances, CENVAT credit cannot be denied to the appellant. It is a fact on record that during the period when the service was availed there was no bar for entitlement of CENVAT credit on ‘outward transportation service’.
The appellant has rightly availed CENVAT credit on the service in question in November 2009 - Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1591 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Cancellation of agreement - cancellation of agreement - maintainability of the application as an allottee - HELD THAT:- Let notice be issued on Respondents by Speed Post. Requisites alongwith process fee, if not already filed, be filed by tomorrow. If the Appellant provides email address of the Respondents, let notice be also issued through email.
Post the appeal ‘for orders’ on 14th January, 2020 for disposal.
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2019 (12) TMI 1590 - ITAT CHENNAI
Order passed u/s 220(2A) - appealable order before the Income Tax Appellate Tribunal - HELD THAT:- As fairly agreed by the learned Authorized Representative that the appeal is not maintainable in so far as an order u/s.220(2A) is not an appealable order before the Income Tax Appellate Tribunal. Consequently, he has prayed for permission “to withdraw the appeal with a liberty to obtain an alternative remedy.” The learned Authorized Representative has also made an endorsement to that effect.
Consequently, the assessee is permitted to withdraw this appeal with liberty to obtain an alternative remedy. Accordingly, the appeal of the assessee is dismissed as withdrawn. Appeal of the assessee is dismissed.
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2019 (12) TMI 1589 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The ‘Purchase Orders’, which makes it clear that ‘M/s. Consolidated Construction Consortium Limited’ is a ‘Purchaser’ and do not come within the meaning of ‘Operational Creditor’ having not supplied any goods nor given any services to ‘M/s. Hitro Energy Solutions Private Limited’. In any case, whether ‘M/s. Hitro Energy Solutions Private Limited’ or ‘M/s. Hitro Energy Solutions’ all ‘Purchase Orders’ having issued on 24th June, 2013 and advance cheques have been issued for subsequently such orders, ‘M/s. Consolidated Construction Consortium Limited’ cannot move application under Sections, 7 or 9 or the ‘I&B Code’.
As the application under Section 9 was not maintainable at the instance of ‘M/s. Consolidated Construction Consortium Limited’, we set aside the impugned order dated 6th December, 2018. The application under Section 9 preferred by ‘M/s. Consolidated Construction Consortium Limited’ is dismissed.
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2019 (12) TMI 1588 - ITAT MUMBAI
Capital gain computation - Calculation of the sale consideration - development agreement for construction of the flats - property belongs to 2 owners - cost the construction determined by the AO which was collected from the developer - Deduction u/s 54 - HELD THAT:- Assessee has valid point that AO should have considered only the cost of construction, not the cost of the project, as per the submission made by the developer and the cash component will definitely be part of the project cost to the developer when the AO adopts the actual cost to the developer as the relevant cost for the fair value to the assessee. He should have restricted himself to calculate the sale consideration only to the portion of relevant cost of construction only relevant for the flats allotted to the assessee and he should have not considered the cash component which is already embedded in the cost of project. Accordingly, we direct the AO to remove the cash component from the sale consideration.
With regard to other cost of expenditure for which the developer has not provided the breakup of the cost of project/construction, we direct the AO to collect the breakup of the cost of the project/construction from the developer and calculate only the cost of construction and eliminate all those promotional expenditures and the expenditure which is not relating to the cost of construction. Therefore, we are inclined to remit this issue to the file of AO to re-calculate the cost of construction. Accordingly, this ground raised by the assessee is allowed for statistical purposes.
Deduction u/s 54 - Combining of flats - how combined portion of the area will be treated as one single unit? - We notice that assessee has modified the development agreement for construction of the flats from 40 flats to 36 flats and 2 penthouses and distributed between them as per terms of original agreement. Therefore, the modified agreement and its schedule, which is placed on record at page no. 43 of the paper book clearly indicates that the intention of the developer and the assessee to make 2 penthouses in 11th and 12th floor as penthouses and assessee was regularly pleading that these 2 penthouses were constructed by combining 4 flats at floors 11th and 12th.
AO has rejected the contention of the assessee with the observation that there is no record that this combing of flats were made during the impugned assessment year. We cannot accept the contention of the AO for the reason that the purpose of modification of the development agreement was to combine 4 flats and to make 2 penthouses. Therefore, we are in agreement with the submission of Ld. AR that there exist 2 penthouses at the site developed by the developer as per the terms of agreement in modified development agreement.
Development agreement was entered by the assessee along with his son with share of 73:27 between them and it is clear that there exist 2 penthouses and two individual assessee . Therefore, each assessee will get separate exemption u/s 54F of the Act. This benefit is legally available to both the assessee . There are catena of cases in which courts have held that when there exists two portion of flats with one ketchen then the whole combined portion of the area will be treated as one single unit for the purpose of granting exemption u/s 54 as well as 54F. Accordingly, we direct the AO to grant exemption u/s 54F of the Act to each assessee and as per their choice. On record, assessee prefers to get penthouse occupied by his daughter as exemption u/s 54F and by legally AO should allow this penthouse as exemption u/s 54F of the Act. Accordingly, this ground raised by the assessee is allowed.
Classification of transaction of sale into land and super structure - CIT-A distributing the sale proceeds into sale proceeds attributable to the land and super structure - flat purchaser has irrecoverably withdrawn his rights for any future FSI /TDR benefits awarded to the owners - assessee determined the capital gains in 2 portions as sale proceeds attributable to the land and determined the capital gain as long term capital gain and second portion as sale proceeds attributable to super structure and determined the capital gain as short term capital gains - HELD THAT:- We notice that in the case of CIT v Citibank [2003 (4) TMI 92 - BOMBAY HIGH COURT] it was held that as per the above ratio, the flat owners will get right of possession as well as right on portion of the undivided share in the land. We notice that as per the proportionate area of flats occupied by him in respect of the total area of the building i.e. undivided share, the owner of the flat will get an automatic membership in the cooperative society in proportion to the undivided share. Since cooperative society owns the total area of the land and being a member of the society, he gets the ownership of the undivided share. As per the sale deed, it is clear that assessee gets a membership on the cooperative societies, it does mean that flat owners not only owns a super structure and also ownership right on the undivided share, therefore we are inclined to accept the findings of Ld. CIT(A) in distributing the sale proceeds into sale proceeds attributable to the land and super structure. Accordingly, we reject the contentions of the revenue and dismiss the grounds of appeal raised by the revenue.
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2019 (12) TMI 1587 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - rejection of application on the ground that the debt in question was secured Corporate Guarantee - application barred by time limitation or not - HELD THAT:- Similar issue fell for consideration before the Hon’ble Supreme Court in GAURAV HARGOVINDBHAI DAVE VERSUS ASSET RECONSTRUCTION COMPANY (INDIA) LTD. AND ANR. [2019 (9) TMI 1019 - SUPREME COURT]. The said case was disposed of on 18th September, 2019. In the said case, the Hon’ble Supreme Court noticed that the account of Respondent No.2 was declared NPA on 21st July, 2011 and subsequently, the State Bank of India filed two Original Applications before the Debts Recovery Tribunal in the year 2012 for recovery of the total debt of ₹ 50 crores. In the meantime, when the State Bank of India assigned the debt to Asset Reconstruction Company (India) Limited on 28th March, 2014, the Debts Recovery Tribunal vide judgment dated 10th June 2016 held that the waiver was not maintainable. In the said case, this Appellate Tribunal by its judgment held that the limitation for application under Section 7 will be counted only from 1st December, 2016, which is the date on which the I&B Code brought into force.
In the present case, it has been accepted that the ‘Corporate Debtor’ defaulted on 13th March, 1989. With regard to other Banks, it defaulted on 29th November, 1989. The suit was filed by IFCI, IDBI & ICICI Banks in the year August 1990. The Judgment and Decree has been passed as far back as on 6th May, 2011. Therefore, the application filed under Section 7 of the I&B Code is barred by limitation - facts also suggest that the application under Section 7 of the I&B Code was filed for the purpose of execution of the Decree passed by the Debts Recovery Tribunal in favour of the ‘Financial Creditor’ for the purpose other than for the resolution of insolvency, or liquidation and is covered by Section 65.
The Adjudicating Authority rightly dismissed the application, which is barred by limitation. This Appeal is dismissed.
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2019 (12) TMI 1586 - NATIONAL COMPANY LAW TRIBUNAL DELHI
Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Para 6 of the Scheme provides that the amalgamation of each of the amalgamating companies shall be accounted for in the books of account of the amalgamated company in accordance with "Pooling of Interests Method" of accounting as per the accounting standard (AS) 14, "Accounting for Amalgamations" as prescribed under the Companies Rules, 2006 applicable to the amalgamated Company pursuant to Rule 3(2) of the Companies Rules, 2015 notified under section 133 of the Companies Act - There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Companies Act, 2013.
The Company Petition is allowed and the Scheme of Amalgamation annexed with the Petitions is hereby Sanctioned.
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2019 (12) TMI 1585 - NATIONAL COMPANY LAW TRIBUNAL DELHI
Approval/sanction of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 (CA, 2013) r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (Rules, 2016) and NCLT Rules, 2016 - HELD THAT:- There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Act, 2013. Taking into consideration the above facts, the Company Petition is allowed and the Scheme of Amalgamation annexed with the Petition is hereby Sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and Employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 01.04.2018.
The scheme is approved - application allowed.
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2019 (12) TMI 1584 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Seeking Liquidation of the Corporate Debtor - Section 33 of the Insolvency & Bankruptcy Code, 2016 - Committee of Creditors meeting has approved for Liquidation - HELD THAT:- In the CoC meeting dated 01.08.2019, the CoC unanimously decided to liquidate the Corporate Debtor under section 33(1) of the I&B Code. The CoC decided that the RP Mr. Dhanshyam Patel be appointed as liquidator subject to approval of this Bench.
The company is ordered to be liquidated - the Process of Liquidation shall commence as per the Chapter III of the Code from date of this Order - application allowed.
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2019 (12) TMI 1583 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - HELD THAT:- The Corporate Debtor, Jayant Vitamins Ltd. committed default on 13th September, 1996. Thereafter, Appellant filed suit for recovery which was decreed on 17th October, 2005 and a case for execution is pending. Therefore, it is found that the application under Section 7 was barred by limitation.
An application under Section 7 was filed with malicious intent, not for resolution of insolvency or liquidation, as covered under Section 65 of the I&B Code - appeal dismissed.
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2019 (12) TMI 1582 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- From the records it is noticed that the Corporate Debtor has not submitted any proof to substantiate its claim that the dispute is pre-existing in accordance with the provisions of IBC 2016 - Further there is no record to substantiate/justify the counter claim made by the Corporate Debtor for an amount of ₹ 23,97,616/- as claimed by Corporate Debtor. Further the said quantum of amount has also not been adjudicated by any relevant Authority.
The application made by the Operational Creditor is complete in all respects as required by law. The Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2019 (12) TMI 1581 - CHHATTISGARH HIGH COURT
Territorial Jurisdiction - Payment of illegal gratification to get relief from the cases registered - Section 8 of Prevention of Corruption Act - principles of res-judicata - whether respondent No.1 had jurisdiction in the case registered in New Delhi, to investigate in the State of Chhattisgarh, without grant of permission under Section 6 of the Delhi Special Police Establishment Act? - HELD THAT:- As per Article 226 of the Constitution of India and the view expressed by Supreme Court in Navinchandra's case [2000 (9) TMI 925 - SUPREME COURT], it may be so that partly the cause of action has arisen in the State of Chhattisgarh as some part of investigation has been conducted by the CBI in Chhattisgarh State. Although this petition has been filed previously on 21.2.2017, whereas WP(Criminal) No. 79/1989 was filed at New Delhi High Court in the year 2018, but the High Court at Delhi has already heard and decided criminal writ petition of co-accused person and that decision too is by a Division Bench. According to the same principle as expressed in Majithia's Case regarding the jurisdiction under Article 226 Constitution of India, the High Court at New Delhi also has jurisdiction to entertain a petition and decide the same on the same logic that the FIR has been registered at New Delhi. It is alleged in the charge-sheet that the conspiracy was hatched up in New Delhi, therefore, the High Court of New Delhi has been the first to exercise jurisdiction and pass an order in the same case with respect to coaccused Anand Agrawal.
There being a decision of a High Court exercising competent jurisdiction, hence, this Court being a Court of Single Judge cannot take up the said issue in the same case to consider and decide the same. The rule of judicial propriety is applicable in such cases, therefore, under the judicial discipline, it is not proper for this Court to take up for decision an issue which has already been decided by a Division Bench of a High Court of competent jurisdiction.
The Delhi High Court in Anand Agrawal's case [2018 (10) TMI 1938 - DELHI HIGH COURT] has very clearly held that CBI has registered the case in New Delhi, only because some of the acts of criminal conspiracy were performed by the accused persons outside Delhi i.e. in Raipur, in that case there would be no necessity for CBI to seek prior sanction of State under Section 6 of the Act for the purpose of investigation. Hence, this issue has already been decided and as per the call of judicial discipline and also the principle of res-judicata, there is no need to reconsider it again. Hence, the issue raised by the petitioner on the point of jurisdiction of CBI investigating the case in Chhattisgarh without prior sanction under Section 6 of the Act is answered accordingly.
As per provisions of Section 8 of the PC Act, it is very clear that a person, who accepts or obtains or agrees to accept or attempts to obtain any illegal gratification, is himself not a public servant. It is only his endeavor or intention to induce by corrupt or illegal means any public servant, is relevant. There is no specific detail in the charge-sheet as to who was the public servant who was to be induced by corrupt or illegal means. Be that as it may, the requirement of proof under Section 8 of PC Act is complete when it is proved that an accused has accepted or obtained or agreed to accept, or attempted to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service etc. This whole section does not put-forth a requirement that the public servant must also be identified for the purpose of Section 8 of PC Act, it is applicable only to a private person, who is not a public servant.
There are no substance in this petition - petition dismissed.
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