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Showing 101 to 120 of 1308 Records
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2020 (9) TMI 1210 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default in payment of conducting fees, water bills, electricity bills and property tax - Operational creditors or not - Operational debt or not - existence of debt and dispute or not - HELD THAT:- When the enhanced rent payable under a tenancy agreement by the Corporate Debtor itself does not amounts to an Operational Debt, the municipal taxes and the Electricity Bills payable by Corporate Debtor under a business conducting agreement/lease agreement stands on lesser footing and cannot be considered as Operational Debt. Therefore, there are no hesitation in holding that the above amounts claimed by the Operational Creditor does not fall within the definition of Operational Debt and the petitioner cannot be termed as “Operational Creditor”.
Time Limitation - HELD THAT:- The company petition is filed on 12.03.2018. All the claims prior to 12.03.2015 are barred by limitation, since we are dismissing the above Company Petition on the very nature of the claim and the locus of the applicant, we are not dealing with each and every contention raised by the respondents.
The Company Petition is not maintainable before this Tribunal and is liable to be dismissed - petition dismissed.
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2020 (9) TMI 1209 - MADHYA PRADESH HIGH COURT
Seeking quashment of FIR at the investigation process - activities promising return of profits upon soliciting deposits in the form adviser fee / royalty - cognizable offence under the provisions of PID Act - HELD THAT:- The police in the present case has registered FIR not on the basis of complaint of a victim and now seeks to find whether there are any victims or not, which is absolutely against the ethos of investigative processes.
The provisions of IPC and PID Act are not attracted prima facie in this case, that there is an statutory bar against taking cognizance by Court for any such offence, which is in the domain of SEBI Act, 1992, which requires complaint to be filed by SEBI Board. This case is squarely relates to breach of provisions of SEBI Act, 1992 and SEBI Regulations, 2013 and only Special Court is empowered to take cognizance on the basis of complaint filed by SEBI Board. The police was not authorized to register an FIR in such case because there is a specific statutory bar in such matters.
What the police could have done was that bring to the notice of SEBI Board the alleged violation being committed by the applicant Company. After providing vital information and inputs to the SEBI Court, the matter would have been looked into by SEBI Board only and appropriate complaint could have been filed by SEBI Board before the competent Special Court - instead of doing so, the police has embarked upon registration of FIR in such a case and by doing so, has travelled beyond the scope of its competence and jurisdiction.
Application allowed.
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2020 (9) TMI 1208 - GUJARAT HIGH COURT
Seeking grant of anticipatory bail - Used Foreign Origin Printing Machine - import of machinery for re-export after repairing and/or refurbishing - applicant was sufficiently interrogated by the DRI and yet no complaint is registered against the applicant - power under Section 438 of the Code to be exercised or not - HELD THAT:- It appears that M/s. PVD Enterprise imported 211 numbers of Used Foreign Origin Printing Machine for repairing and refurbishing. 114 numbers were imported vide Bill of Entry No.4361330 dated 05.08.2019 and 97 numbers were imported for which they filed Bill of Entry No.4814912 dated 07.09.2019.
In M/S PVD ENTERPRISE VERSUS ADDITIONAL DIRECTOR GENERAL [2021 (9) TMI 834 - GUJARAT HIGH COURT] preferred by M/s. PVD Enterprise, affidavit in reply was filed by the respondent no.2 before this Court on 10.01.2020. The dispute between M/s.PVD Enterprise and the respondent no.2 is pending before this Court on judicial side in respect of machine imported for the purpose of repairing and refurbishing. In connection with this dispute, inquiry was initiated by the department and the applicant was issued summons, time and again, to remain present before the office.
The Hon’ble Apex Court, in the case of SIDDHARAM SATLINGAPPA MHETRE VERSUS STATE OF MAHARASHTRA AND OTHERS [2010 (12) TMI 1085 - SUPREME COURT], has held that under Section 438 of the Code, it is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace are attached to arrest. In cases where the Court is of considered view that the accused has joined investigation and he is fully cooperating with the Investigating Agency and is not likely to abscond, in that event, custodial interrogation should be avoided and anticipatory bail should be granted which after hearing public prosecutor, should ordinarily be continued till end of the trial. There cannot be any dispute regarding the law settled down by the Hon’ble Apex Court or any observations made in the judgment - In the similar facts of the case on the identical issue, the Hon’ble Apex Court has set aside the order of the Hon’ble High Court directing the custom authorities restraining to arrest a person when summons under Section 108 of the Customs Act for recording the evidence was issued.
Application dismissed.
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2020 (9) TMI 1207 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - share purchase agreement with the Corporate Debtor - existence of debt and dispute or not - HELD THAT:- This Tribunal admitted the application appointing Mr. Amier Hamsa Ali Abbas Rawther as the Interim Resolution Professional.
Now the Corporate Debtor namely M/s Sree Bhadra Parks and Resorts Limited filed an application under Rule 11 of the NCLT Rules to recall the order passed by this Tribunal and permit them to settle the matter. Along with the application “Form FA” for withdrawal of Corporate Insolvency Resolution Process has been filed, duly signed by the applicant stating that on 26.8.2020 settlement has been arrived for a total sum of ₹ 2,25,00,000/- as full and final settlement of the entire claim between the Corporate Debtor M/s Sree Bhadra Parks and Resorts Limited.
In view of the settlement arrived between the parties by filing Form FA before this Tribunal and that the IRP stated that he has received his fees, the application stands disposed of.
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2020 (9) TMI 1206 - ITAT BANGALORE
Deduction u/s 80IA - apportionment of common expenses - Whether CIT (A) erred in not allowing full deduction under section 80IA and should have appreciated the fact that separate books of accounts were maintained for each windmills and assessee has filed Profit & Loss accounts of each windmills separately in Form IOCCB - HELD THAT:- As submitted by assessee that as per para 5.2 of the order of CIT(A), it is noted by CIT(A) has in Assessment Year 2008-09 in assessee’s own case, the Tribunal has restored the matter back to the file of CIT(A) for a fresh decision. At this juncture, the Bench wanted to know about the final outcome in Assessment Year 2008-09 after such direction of the Tribunal. In reply, it was submitted by learned AR of the assessee that the issue is still pending before CIT(A). Then, at this juncture, it was observed by the Bench that in that situation, the matter in the present year should also go back to CIT(A) for a decision simultaneously with a decision in Assessment Year 2008-09. Both the sides agreed to this proposition put forward by the Bench.
We set aside the order of CIT(A) and restore the matter back to his file for a fresh decision simultaneously with decision on this issue in Assessment Year 2008-09 if it is still pending before CIT(A) because in that year, the matter was remanded by the Tribunal to the file of CIT(A). Assessee’s appeal is allowed for statistical purposes.
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2020 (9) TMI 1205 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Appeal under Section 37 of Arbitration and Conciliation Act, 1996 was pending challenging the award, on the date on which the operational debt became due against the Corporate Debtor, or not? - HELD THAT:- From the plain reading of un-disputed facts in this proceeding, it is clear that on the date on which the Corporate Debtor was served with demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 or on the date on which the application is filed against the Corporate Debtor, no arbitration proceedings was pending challenging the award.
Operational debt become due and payable on 29.02.2012 i.e on the date of which the Learned District Judge confirmed the award under Section 34 of A & C Act. The Corporate Debtor filed Appeal under Section 37 of the Act. It was dismissed in default. 90 days thereafter, on 14.02.2020, Operational Creditor gave the Corporate Debtor notice under Section 9 of the Insolvency and Bankruptcy Code, 2016. On 28.02.2020 - the operational creditor sent a demand notice three months after the Corporate debtor's appeal was dismissed by Hon'ble high Court. As soon as the Corporate Debtor received the demand notice, its officers swung into action and get the appeal restored. Meantime, the operational creditor had filed this application. It appears from record that the officers of the Corporate Debtor using the proceedings under the law either to delay or to avoid the legitimate dues of the Corporate Debtor on one or the other ground.
Operational Creditor has established that the Corporate Debtor committed default in paying the operational debt of ₹ 5,62,01,258/- inspite of receipt of demand notice. There was no dispute pending (by way of arbitral proceeding or otherwise) on the date on which the default occurred or on the date on which the application is filed to initiate Corporate Insolvency Resolution Process of the Corporate Debtor - Also, no disciplinary proceeding is pending against the proposed Insolvency Resolution Professional. It is not in dispute that the corporate debtor did not pay the operational debts.
Application admitted - moratorium declared.
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2020 (9) TMI 1204 - DELHI HIGH COURT
Seeking an interim direction, to Respondent No. 1, to furnish a bank guarantee - discontinuance of payment of running accounts bills submitted by the petitioner, consequent breach, by Respondent No.1, of Clause 3.3 of the sub-contract agreement and discontinuance of the allocation of work to the petitioner - Section 9 of the the Arbitration and Conciliation Act, 1996 - HELD THAT:- While Section 9(1)(ii)(b) of the 1996 Act unquestionably empowers the court to secure the amount in dispute in the arbitration, any such direction has, in principle, to conform to the discipline of Signature Not Verified Digitally Signed. Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908. Further, it is not enough for the petitioner to establish a prima facie case, balance of convenience and irreparable loss; additionally, the petitioner would have to establish, on facts, that, were security not to be directed as prayed, the arbitral proceedings were likely to be frustrated. Section 9 is not intended to operate as an alternative to Section 17.
Prima facie, the concern expressed by Mr. Ravi Ranjan is purely in the realm of apprehension and conjecture at present. It Signature Not Verified Digitally Signed hinges on several imponderables, with no supportive material forthcoming from the record - that apart, the mere perceived difficulty in the enforcement of a possible arbitral award, which might ensue in favour of a party, cannot, prima facie, be a ground to direct the furnishing of security, in a proceeding under Section 9 of the 1996 Act.
Various notices to be issued - Renotify on 19th November, 2020.
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2020 (9) TMI 1203 - PATNA HIGH COURT
Reopening of assessment u/s 147 - assessment carried out under CASS - valuation of the property not accepted - Objection to the Valuation Report submitted by the Assessee - HELD THAT:- There is nothing on record to establish that save and except for the Valuation Report, alone, there is any other material even prima facie, indicating application of mind by the Assessing Officer in arriving at its conclusion, necessitating reopening of assessment carried out under CASS.
The difference in valuation of the property in the two reports is also not substantial. However, we may not be misunderstood of our judgment to be clouded by such fact. The Assessee is a salaried person. He had constructed a residential house on a plot owner by his wife. During the course of proceedings, in fact much prior to the passing of the order accepting his return, he had submitted the Valuation Report from an approved Valuer. The same was never objected to or rejected. Right from day one, he had disclosed full particulars, what took the official valuer more than ten months to value the property and why despite the Assessee having submitted his Valuation Report dated 10th of January, 2005 request for calling Valuation Report was made only on 19th of October, 2006 and why the report reached the officer on 5th of November, 2007 are all questions which are not answerable from the record.
As such, to our mind, without meeting the essential ingredient of the officer having applied his mind to the various material, necessitating reopening of assessment, is missing in the instant case.
Hence, in the given facts and circumstances, we quash and set aside the impugned order - Decided in favour of assessee.
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2020 (9) TMI 1202 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Cancellation of the sale effected by respondent - reversal of sale transaction - Whether the sale of the secured asset in public auction as per Section 13(4) of SARFAESI Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Security Interest (Enforcement) Rules, 2002 is a complete and absolute sale for the purpose of SARFAESI Act or whether the sale would become final only on the registration of the sale certificate? - scope of SARFAESI Act.
HELD THAT:- The SARFAESI Act is concerned since the sale is by public auction, therefore, the moment bid is accepted and authorised officer confirmed the sale in favour of purchaser, the sale become absolute and the title vests in the purchaser. A sale certificate is issued only when the sale become absolute. Purpose of registration is to pay only the stamp duty and registration charge and due to non registration of sale certificate, sale shall not be treated void and liable to set aside.
In this case, auction was conducted on 24/10/2019 and on the same day, Sale confirmation Advice was issued in favour of Respondent no. 3 Alucom Penals Pvt. Ltd. and subsequently on 30/12/2019, sale certificate was issued, therefore, the sale become absolute on the day, when his bid was accepted and sale confirmation advice was issued, i.e. on 24/10/2019 and title is vested with the purchaser and issuance of sale certificate on 30/12/2019 is merely an evidence of that title and the registration of the sale certificate is merely the formality, which is required under the Registration Act. Unlike the transfer of the immovable property made under the TP Act, the sale under the public auction is completed, the moment the bid is accepted and sale confirmation advice is issued.
The contention of the Ld. Counsel for petitioner the sale can only be completed when the registration of the sale certificate is made, is not liable to be accepted.
Section 52 T.P. Act - HELD THAT:- Although this point has not been raised by the Ld. Counsel for petitioner in course of his arguments but since it is stated in the application, therefore, we wanted to make comments on this issue also. It is the settled principle of law that the transactions made during the pendency of the suit or proceeding under Section 52 of the TP Act is not void ab-initio, rather it depends upon the result of the suit.
There is no merit in the application filed by the applicant, and there is no violation of Moratorium declared u/s 14 of IBC - application dismissed.
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2020 (9) TMI 1201 - CHHATTISGARH HIGH COURT
Cancellation of registration of petitioner - case of petitioner is that the petitioner had never sought for cancellation of the registration and that the cancellation in fact was sought by another establishment namely Omkar Steel - HELD THAT:- The admitted factual position is that the petitioner was a duly registered body under the GST law. On account of inadvertence on the part of the Consultant of the petitioner, the application for cancellation of registration was put up by the Consultant in the name of the petitioner whereas the said application was in fact intended on behalf of another establishment namely M/s Omkar Steel. Thereafter, the petitioner had approached the respondents for revocation of the cancellation of registration which for want of proper provisions under the Act as also under the Rules has not been acceded or accepted by the Department.
In the absence of any power so conferred upon the authorities in respect of the category whose cancellation has been done on an application filed by the registered person themselves, it will be difficult for this Court for issuance of a specific writ to consider the application for revocation of the cancellation of registration. Though in the opinion of this Court, once under Section 30 of the Act a power has been given to the proper officer for revocation of the cancellation of registration in respect of those establishments where the cancellation has been done at the instance of the Department, hence there is no reason why the other category where the registration has been cancelled at the behest of the registered person also not get an opportunity for moving before the authorities seeking for a revocation of the cancellation of registration if they so want. Rather, it should be a case where the said provision should be read in a manner where such category of persons also would have the liberty of approaching the authorities seeking for revocation of the cancellation of registration.
This Court directs the petitioner to approach the GST Council in respect of their grievance and the stand taken by the Department. At the same time, this Court would also like to direct the respondents to consider referring the dispute of the petitioner to the GST Council for an appropriate clarification or guideline.
Petition disposed off.
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2020 (9) TMI 1200 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Seeking extension of the CIR Process - the Bank is one of the constituents of the COC - HELD THAT:- At this stage, the IRP along with the Counsel caused appearance and submitted that on an earlier point of time, the HDFC Bank had declined to seek the extension of the CIR Process.
In the circumstances, it is deemed appropriate to direct the IRP to send short notice to all the members of the COC for convening the meeting for deliberating on the issue with regard to extension of the CIR Process. The meeting shall be convened on 13th October, 2020 through visual hearing and the report shall be filed on 16th October, 2020.
List on 16.10.2020.
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2020 (9) TMI 1199 - ITAT DELHI
Assessment u/s 153A - incriminating material found during the course of search or not? - HELD THAT:- In the instant case also both the CIT(A) as well as the ITAT have held that the addition is not based on any incriminating material found during the course of search and the assessment was not pending on the date of search. In the proceedings before the CIT(A) as well as the ITAT, the Revenue has not made any attempt as to disclose the incriminating material.
The view taken by the tax authorities based on the decision of CIT Vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] cannot be held to be perverse. The questions of law proposed by the Revenue are squarely covered by the aforesaid judgment.
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2020 (9) TMI 1198 - ITAT SURAT
Deduction u/s 80IB - whether the appellants are to be assessed as AOP or as individual? - income from housing project in the name of "Hampton Park" belongs to AOP and not in the individual capacity as co-owner - AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB - HELD THAT:- It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction u/s 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB.
In the case of Sudhir Nagpal and Others Vs. ITO [2013 (2) TMI 371 - PUNJAB AND HARYANA HIGH COURT] wherein agricultural land was inherited by the co-owners from their forefather and general power of Attorney was executed by all the co- owners in favour of the "S" appointing him to construct plinth on their joint agricultural land in the name of all the owners and to further lease out such open plinth to any party on their behalf.
In this case, the issue came up whether the appellants are to be assessed as AOP or as individual. It was held that the co-owners had inherited the property from their ancestors and there was nothing to show that they had acted as AOP. It was also held that in order to asses individual to be forming AOP, the individual co-owners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally.
There was non-existence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in their individual capacity. It was further pointed out that the assessee as well as Ashok Govindbhai Patel has obtained separate registration under the Service Tax act in the individual capacity and the Service Tax Return filed along with deposit of service tax in the individual capacity were also furnished. It was contended that this is not the case where two or more independent persons have joined together for acquiring land and construction housing project by pooling their joint resources. The, assessee with her son cannot be at all be said to be -voluntarily, because the land has been received by them jointly by way of; inheritance. In such cases, the association of two or more persons is a forced association of the joint legatees and therefore, the status can only be regarded as co-ownership.
Assessee was a builder and developer. It carried out the project for developing the land held by assessee. Assessee received his share of profit from the same and claimed deduction of her share of profit as per provision of section 80IB (10). The AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB. It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction under section 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB
Our view is further, fortified from the decision of CIT v. Shrayanee Constructions [2012 (7) TMI 88 - KARNATAKA HIGH COURT] wherein it was has held that it is not merely building housing project, which attracts provisions of section 80IB(10), it is developing and building housing project, which attracts said provisions for allowing deduction under section 80IB of the Act - Appeal of the assessee is allowed.
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2020 (9) TMI 1197 - ITAT BANGALORE
TPA - comparable selection - comparability of 7 companies with a SWD service provider such as the Assessee - HELD THAT:- Assessee in engaged in the business of provision of Software Development Services (SWD services), to its wholly owned holding company. In terms of the provisions of Sec.92-A - Companies functionally dissimilar with that of assessee need to be deselected from final list.
Risk adjustment while determining ALP - A perusal of the order of the DRP in this regard shows that the DRP has not directed the AO to allow risk adjustment @ 1%, but has only directed the AO to decide the percentage of risk adjustment to be calculated and to take guidance from the decision of the ITAT Bangalore in the case of Hellosoft Pvt. Ltd. [2013 (10) TMI 747 - ITAT HYDERABAD]. Nevertheless there is no basis or discussion on what are the risks and its quantification. Hence, we are of the view that the said direction is not in accordance with law and hence Gr.No.2 raised by the revenue is allowed, in the facts and circumstances of the present case.
Negative working capital adjustment - HELD THAT:- The grievance that advances received from AE should be considered as part of payables for computing working capital requirement is also a settled proposition. Since the issue has not been dealt with in proper perspective and there are factual contradictions, we deem it fit and appropriate to remand the issue of working capital adjustment to the TPO/AO for a consideration afresh after opportunity to the Assessee and in the light of the observations made in this order on working capital adjustment.
The grievance that advances received from AE should be considered as part of payables for computing working capital requirement is also a settled proposition. Since the issue has not been dealt with in proper perspective and there are factual contradictions, we deem it fit and appropriate to remand the issue of working capital adjustment to the TPO/AO for a consideration afresh after opportunity to the Assessee and in the light of the observations made in this order on working capital adjustment.
Computation of deduction u/s 10A - exclusion of telecommunication expenses, insurance charges and foreign exchange loss both from the export turnover and total turnover for the purpose of computation of deduction u/s. 10A - HELD THAT:- It is not in dispute before us that the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] has held that charges/expenses relating to telecommunication, insurance charges and foreign exchange loss should be excluded both from export turnover and total turnover while computing deduction u/s.10A of the Act i.e., whatever is removed from the numerator should also be excluded from the denominator while working total turnover and export turnover for allowing deduction u/s.10A of the Act. The aforesaid decision of the jurisdictional High Court has been upheld by the Hon’ble Supreme Court in the case of CIT v. HCL Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT]
Depreciation on the Written Down Value [WDV] of the lease rentals capitalized in AY 2010-11 in respect of which DRP for AY 2010-11 directed the AO to allow depreciation - premise on lease and paid lease rent - HELD THAT: - AO in his draft assessment order dated 30.3.2015 did not disallow the claim of the Assessee for deduction on account of depreciation. On objections by the Assessee before DRP, the DRP directed the AO to give effect to directions of DRP for AY 2010-11 and allow depreciation. AO in his final assessment order which is subject matter of this appeal disallowed a sum of ₹ 1,49,65,386 instead of allowing depreciation on WDV of the sum of ₹ 1,64,45,484/- as directed by the DRP. The sum of ₹ 1,49,65,386 was arrived at by the AO by reducing a sum of ₹ 14,80,094 from the opening WDV of lease rentals of ₹ 1,64,45,484/-. The approach of the AO in the final order of assessment is not accordance with law and in compliance with the directions of the DRP. As per directions of DRP, the AO should have allowed deduction on account of depreciation of ₹ 14,80,094 - We hold and direct accordingly and allow ground.
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2020 (9) TMI 1196 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Approval of Resolution Plan - section 30(6) of IBC, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Process of Corporate Persons) Regulations, 2016 - HELD THAT:- On going through the Resolution Plan submitted by M/s. Invent Assets Securitisation and Reconstruction Pvt Ltd which satisfies the threshold approval by 60% voting right of the CoC. As per the CoC, the plan stands the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.
Further, in case of non-compliance of this order or withdrawal of Resolution Plan by the Resolution Applicant, the CoC shall forfeit the EMD amount paid by the Resolution Applicant.
The Resolution Plan submitted by M/s. Invent Assets Securitisation and Reconstruction Pvt Ltd. is hereby APPROVED - Application allowed.
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2020 (9) TMI 1195 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Seeking extension of time period of CIRP for a period of 90 days excluding lockdown period - Section 12 of the Insolvency & Bankruptcy Code, 2016 (Code) read with Regulation 12 (2) of IBBI(Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- As per the decision taken by COC it is prayed that this Adjudicating Authority may be pleased to issue order extending the CIRP process by a period of 90 days from 17.7.2020 excluding the lock down period of 72 days (till 15.10.2020).
The extension of CIRP by 90 days is granted and the period of 72 days from 27" August, 2020 to 15" October, 2020 is also considered for being excluded while calculating the number of available days for CIRP calculation.
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2020 (9) TMI 1194 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of extension in time, for making the re-payment of the balance settlement amount in terms of One Time Settlement (OTS) - balance could not be paid due to prevailing lockdown situation - Whether this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, has the jurisdiction to extend the period of One Time Settlement? - HELD THAT:- If the settlement policies of the banks itself provide for an extension subject to payment of interest, there is no reason to hold that the Courts in exercise of their equitable jurisdiction under Article 226 of the Constitution of India, cannot extend such time period of settlement.
Further, it is also to be noticed, that invariably in all the settlement schemes or the policies, there are already sufficient checks and balances to identify eligible borrowers to whom such concessions can be extended to lead to an OTS. It is needless to mention that settlement takes place, only after the case of the borrower has been tested on the basis of criteria of eligibility for settlement provided under the scheme or policy itself. For example we see, that cases of wilful default and fraud are normally excluded - a deserving borrower, who has deposited substantial amounts within the originally stipulated period of settlement, proved his bona fides and is willing to clear the remaining in a reasonable period, and compensate the creditor with interest for the period of delay, should be considered with some flexibility to achieve the ultimate aim of such settlements. It is with this perspective, that extensions can be considered to be granted to deserving cases.
This issue in answered in AFFIRMATIVE and hold that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would have the jurisdiction to extend the period of settlement as originally provided for, in the OTS letter.
Whether in the facts of the present case, the petitioners would be entitled for an extension in making payment of the balance settlement amount pursuant to One Time Settlement dated 29.01.2019? - HELD THAT:- In the present case, the petitioner has prayed for extension of settlement period pursuant to an OTS entered with respondent No. 2 and has paid substantial portion of the same and is willing to pay the remaining with interest. In our considered opinion, if the petitioners are in litigation with other creditors the same by no stretch of imagination constitutes to be a material fact, disclosure of which would have had any impact over the decision of the present case. So long as the respondent No. 2 is getting its money back, under a settlement voluntarily entered into by it, it would have no concern with what the petitioners are litigating with the other creditors - there are no hesitation in rejecting this argument of the respondent.
The petitioners would have to pay the remaining amount due in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of Respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to ensure adherence to the time schedule of repayment.
Whether the present petition is maintainable in view of the proceedings pending before National Company Law Tribunal, Mumbai? - HELD THAT:- The present case is peculiar in nature, inasmuch as, usually it is Corporate Debtors of private and public nature which are subjected to Insolvency proceedings at the instance of the creditors (Financial/Operational). However, proceedings before the Adjudicating Authority i.e. the "National Company Law Tribunal, in the present case, have been initiated against the Respondent/Financial Service Provider i.e. the creditor itself, at the instance of the Regulator i.e. Reserve Bank of India. Such proceedings against the Financial Service Provider are governed under the Code, 2016 by virtue of Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules, 2019.
On one hand, the respondent, is facing liquidity issues resulting into initiation of insolvency proceedings and surprisingly on other hand is opposing the prayer of a borrower who intends to make payment to the respondent, which should be the need of the hour, as far as the respondent is concerned. We are yet to notice a plea taken by an entity facing insolvency proceedings, to oppose the prayer of the petitioner which is proposing to make payment of its dues payable to respondent. In our opinion, the interpretation sought to be given by the respondent, is a self defeating argument and hence we express our inability to accept the same - this issue is answered in AFFIRMATIVE and it is held that in the peculiar facts and circumstances of the present petition, the petition would be maintainable.
The petitioners would have to pay the remaining amount due pursuant to OTS dated 02.01.2019 (P-11) in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to adhere to the time schedule of repayment - Petition allowed.
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2020 (9) TMI 1193 - NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH
Seeking extension of time period of Corporate Insolvency Resolution Process - Section 40(2) of CIRP Regulation and as per Section 12(2) of IBC 2016 - HELD THAT:- On going through the pleadings on record as also the minutes of the 6th COC meeting held on 15.9.2020 in which a resolution was passed to file application under Section 40(2) of CIRP Regulation and as per Section 12(2) of IBC 2016 for a time period extension of 30 days with effect from 13.9.2020 so as to consider and evaluate the revised Resolution plan.
The prayer for extension of Corporate Insolvency Resolution Process period for extension of 30 days with effect from 13.09.2020 is allowed - Application allowed.
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2020 (9) TMI 1192 - MADRAS HIGH COURT
Deduction u/s 10A - deduction allowed without reducing the brought forward losses pertaining to the year subsequent to the assessment year and setting the same off against gains of business in the current year - HELD THAT:- The issue raised in this appeal is covered by the decision of this Court in the case of M/s.Comstar Automative Technologies Private Ltd [2020 (7) TMI 730 - MADRAS HIGH COURT] in favour of the assessee. Further in the decision of this Court in the case of CIT Vs. M/s.Comstar Automotive Technologies Pvt. Ltd. 2020 (3) TMI 814 - MADRAS HIGH COUR T]to which, one of us (TSSJ) was a party, the above mentioned substantial question of law was decided against the Revenue.
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2020 (9) TMI 1191 - BOMBAY HIGH COURT
Effect of issuance of notification dated 14th September, 2020 on export of goods, which were loaded and were with the customs authority, prior to issuance of the said notification - Onions - validity of shipping bills - HELD THAT:- It appears that the consignments of the Petitioners were with the customs authority prior to issuance of the impugned notification. While the decision taken by the Respondents are appreciated, to mitigate the hardship of those exporters where consignments were already loaded for export, it would be in the interest of justice if the same benefit is extended to the goods of the Petitioners because according to them their consignments were with the customs authority prior to issuance of the notification.
It is expected that a decision to be taken expeditiously as admittedly the goods are perishable - also,the shipping bills prior to issuance of the impugned notification shall not be construed to have lapsed till the matter is decided - Stand over to 29th September, 2020.
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