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Showing 121 to 140 of 1308 Records
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2020 (9) TMI 1190 - ITAT BANGALORE
Nature of expenditure - Expenditure on payment of franchisee fees - assessee company has acquired the rights for the sale of products belonging to the specific brands - revenue or capital expenditure - HELD THAT:- In this case, the assessee entered into various Agreements with various parties as discussed earlier which is the payment of franchisee fees - The above payments based on certain percentage of sales by the assessee. The parties with whom the assessee has entered into Agreement has not transferred any business or commercial rights with enduring benefits to the assessee. The assessee cannot be said to have any enduring benefit by entering into these agreements.
These are in the nature of day to day operations of the assessee's business. Being so, the CIT(Appeals) justified in allowing the expenditure as revenue expenditure. This position is fortified with the decision in the case of Jonas Woodhead & Sons Ltd. Vs.CIT [1978 (11) TMI 44 - MADRAS HIGH COURT].
Hon'ble Madras High Court in the case of CIT Vs. TVS Ltd [1976 (11) TMI 40 - MADRAS HIGH COURT] held that when the payment made by the assessee to a company was in the nature of license fees which constitute an item of allowable expenditure in the computation of profit and gains and it cannot be a capital expenditure. In our opinion, the findings and reasons given by the CIT(Appeals) to allow the claim of the expenses in regard to franchisee on the Agreement entered by the assessee is a revenue expenditure and it cannot be construed as a capital expenditure. Hence the appeal of revenue is dismissed.
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2020 (9) TMI 1189 - BOMBAY HIGH COURT
Disqualification of directors Companies Fresh Start Scheme, 2020 - applicability of Section 167 (3) of Companies Act - HELD THAT:- Nothing stops this Petitioner from persuading the other directors or the promoter from nominating any other person as a director to apply under the Scheme. We have to also keep in mind the delay and the stage at which the Petitioner has approached this Court regarding the Scheme.
Since the position has been clarified by the learned Additional Solicitor General as above, that in the capacity of promoter the Petitioner/s can nominate any person as a director and follow section 167(3) of the Act to apply under the Scheme, it is not necessary for us to issue any further directions. This course of action is, therefore, available to the Petitioner/s regarding the Scheme.
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2020 (9) TMI 1188 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking condonation of delay of 230 days in preferring Company Petition - availability of Section of the Limitation Act, 1963 to an Application filed under Section 7 or Section 9 by a Creditor - HELD THAT:- The Hon'ble Supreme Court of India in B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] has stated that Limitation Act is applicable since the inception of the Code (IBC, 2016) while posing itself with a query as to whether the Limitation Act, 1963 will apply to Applications that are made under Section 7 and or Section 9 of the Code (IBC, 2016) on and from its commencement on 01.12.2016 to 06.06.2018 (date of amendment of insertion of Section 238-A coming into effect), Referring to the Report of the Insolvency Law Committee of March, 2018 in this regard and after extracting paragraph 28.1 to 28.3 of the said Report and highlighting that the Code (IBC, 2016) could not have been to give a new lease of life to debts which are time barred and has thereby gone to give a finding that the Limitation Act is applicable from the inception of the Code.
The reasons hence given in the Application that since the Limitation Act, 1963 came to be applied only from 06.06.2018 and in the circumstances in effect there has been a laxity on the part of the Applicant to approach this Tribunal also does not hold much water in view of the observations made by the Hon'ble Supreme Court of India that bringing into effect the amendment on and from 06.06.2018 by insertion of Section 238-A of IBC, 2016 is more by way of only a clarification about the applicability of the 'Limitation Act' and cannot be claimed to be made applicable only from the date when the 'Amendment Act' came into force on 06.06.2018.
The pleadings have failed to clearly bring out as to how the number of day's delay as stated in the Application of 230 days has been computed giving out clearly the start and end date. Even when the learned Counsel for the Respondent specifically raised the issue, Learned Counsel for the Applicant was not in a position to answer the issue - thus, no sufficient cause has been demonstrated to involve Section '5' of the Limitation Act, 1963, even assuming it can be applied at all.
The Application seeking for condonation of delay, in filing a Petition / Application under Section '9' of IBC, 2016 invoking Section '5' of the Limitation Act, 1963 stands dismissed.
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2020 (9) TMI 1187 - SUPREME COURT
Dishonor of Cheque - acquittal of the accused - acquittal on suspicion, surmises and conjectures - the recovery of knife and rope at the instance of the Accused - appreciation of evidence on doubtful disclosure statements - non-examination of material witnesses - prosecution has to prove the complete chain of events - material contradictions and even the recovery of jeep, knife and rope, photographs from the jeep.
HELD THAT:- It is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence.
In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the Accused and on alleged disclosure statements of the Accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the Accused were found. The prosecution also relied upon the disclosure statement of the Accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony of PW5, PW6 and PW7 - the prosecution and the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross-examination, he has also specifically stated that "it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on 2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure statements of the Accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged by the prosecution. From evidence, it emerges that the knife, rope and vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when the Accused were arrested.
The Investigating Officer did not follow the procedure as required to be followed Under Section 166(3 & 4), Code of Criminal Procedure Even he did not comply with the provisions of Section 100(4) Code of Criminal Procedure Non-following of the aforesaid provisions alone may not be a ground to acquit the Accused. However, considering the overall surrounding circumstances and in a case where recovery is seriously doubted, non-compliance of the aforesaid play an important role - Even the recovery of the mobile phone from the jeep belonging to PW7 also creates doubt. Though, PW7 has stated that his mobile was stolen or cheated, he never filed any complaint earlier. Even the IO has not tried to have the call details of the mobile. He has not tried to verify from the call details the conversation to or from the mobile.
The findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of event - the High Court is not justified in reversing the order of acquittal passed by the learned trial Court.
Petition allowed.
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2020 (9) TMI 1186 - ALLAHABAD HIGH COURT
Dishonor of Cheque - validity of summon order passed by the Court - Intent of drawer is clear that he will not make payment - HELD THAT:- The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment - In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court.
In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no' - Reason given by the learned Magistrate is very clear. It is well reasoned order which was passed on 30.11.2019. For a period of one year, the petitioner has chosen not to appear before the learned Magistrate and has moved this Court now.
This petition is dismissed with cost of ₹ 15,000/- to be deposited before the Court below.
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2020 (9) TMI 1185 - JHARKHAND HIGH COURT
Grant of Regular Bail - input credit availed on the basis of forged document - HELD THAT:- List this case after four weeks along with B.A. No.4348 of 2020 and analogous cases arising out of Govindpur P.S. Case No.256 of 2019.
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2020 (9) TMI 1184 - MADRAS HIGH COURT
Maintainability of petition - Territorial Jurisdiction - import of consignment at Tuticorin Port - petitioner is residing at Kerala and the authority is based in Haryana - HELD THAT:- A mere look at Article 226 of the Constitution of India would indicate that even if the authority is located outside the territorial limits of the High Court where the writ petition has been filed still orders can be passed, if at least a part of the cause of action had arisen within the territorial limits of this Court. It is not in dispute that the petitioner had imported the consignment in question only at Tuticorin Port. Thus, not a mere part of the cause of action but the basic cause of action had arisen only within the territorial limits of this Court.
There are jurisdiction to maintain this writ petition - the first respondent to dispose of the petition mentioned appeal on merits and in accordance with law within a period of two weeks from the date of receipt of a copy of this order.
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2020 (9) TMI 1183 - SPECIAL COURT, PANCHKULA
Grant of Anticipatory Bail - acceptance of huge bribe amount from the complainant - Raids of the factory - physically the stocks of raw material were much more than that was recorded in the books - HELD THAT:- Accused Kuldeep Hooda and present applicant Gurvinder Singh Sohal are alleged to have demanded and accepted the remaining bribe amount of ₹ 6 lacs on 14.08.2020 in moving Creta vehicle, but the accused after getting apprehensive, abandoned the vehicle and the bribe amount as well as the vehicle were recovered and taken in possession by the CBI in the presence of independent witnesses and applicant-accused is absconding since 14.08.2020. Applicant-accused along with co-accused demanded huge bribe amount from the complainant and there are also recorded conversations indicating prima facie active involvement of applicant-accused in the alleged offences and therefore custodial interrogation of applicant-accused is very much necessary in the interest of investigation. No public servant can be allowed to behave and act as an extortionist. The menace of corruption is eating into the vitals of our society and the same needs to be dealt with sternly. Keeping in view the entirety of the facts and circumstances and in the light of allegations against the applicant-accused, this Court of the considered opinion that it is not a fit case to exercise extraordinary power of granting anticipatory bail to the applicant-accused.
Without commenting on the merits of the case, present bail application of applicant-accused, namely, Gurvinder Singh Sohal for grant of anticipatory bail, being devoid of merits, is hereby dismissed.
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2020 (9) TMI 1182 - MADRAS HIGH COURT
Maintainability of petition - requirement of certified copy of the petition mentioned order - HELD THAT:- All that the petitioner wants is that he should be provided with certified copy of the petition mentioned order. In this regard, the petitioner has given a representation on 30.01.2020 - No exception can be taken to the said request.
The respondent are directed to furnish the petitioner with certified copy of the said order at the earliest - petition allowed.
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2020 (9) TMI 1181 - NATIONAL COMPANY LAW TRIBUNAL, DIVISION BENCH - 1, CHENNAI
Restraint on Respondent Liquidator to create any third party interest by way of auction, sell or proceed to deal with the property otherwise or deal with the EMD remitted by Applicant - liability to pay the sum of ₹ 6 Lakhs to the Liquidator over and above the successful bid amount of ₹ 130 Lakhs - HELD THAT:- It is seen that the Applicant has paid a sum of ₹ 10 Lakhs as EMD and the remaining sum of ₹ 120 Lakhs is yet to be paid and the Counsel for the Applicant has submitted that they are ready with the amount to be paid to the Liquidator. Taking into consideration, the said representation, we direct the Applicant to pay the remaining amount of ₹ 120 Lakhs to the Liquidator within seven days from the date of receipt of the Order. Further, the Applicant is also directed to pay a um of ₹ 6 Lakhs to the Liquidator towards Maintenance Security Deposit within the said period of 7 days from the date of receipt of this order and the same to be remitted to DLF. Upon receiving the total bid amount and the Maintenance Security Deposit, the Liquidator is directed to execute the sale deed and hand over the possession of the property along with title documents within a period of 7 days thereafter and further it is clarified that the Liquidator will pay the pending tax arrears to MCD as undertaken.
Application disposed off.
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2020 (9) TMI 1180 - ITAT DELHI
Payment of royalty on sales to its AE - HELD THAT:- As no distinguishing decision has been brought to our notice respectively following the decision of the coordinate bench [2015 (5) TMI 350 - ITAT DELHI] we direct the AO/ TPO to delete the addition on this account. This ground is accordingly allowed.
Disallowance of CSR expenditure - HELD THAT:- The assessee has placed on record the list of the expenditure before us. The perusal of the same reflects the expenditure on certain renovation work at Mohindergarh including providing chairs and tables by the assessee. Further expenses are debited on account of Tools for Honda Training Center Lab- Mohindergarh. All the said expenses are incurred for efficiently carrying out the business of the assessee and thus fulfill the condition of wholly and exclusively for the purpose of business. Further, the donation to Brahma Kumaris merits to be disallowed in the hands of the assessee, as it is case of charity. The same may be looked into as per the provision of section BOG of the Act. Further, expenditure incurred towards display of name/logo of the assessee on various items is undoubtedly for the promotion of the business of the assessee as it promotes goodwill. Hence, the expenditure is to be allowed as revenue expenditure.In the light of the above we direct the AO to delete the impugned addition. However, we make it clear that amount being paid to Brahma Kumaris need not be deleted.
Disallowance of expenditure on signages - HELD THAT:- As decided in own case [2020 (9) TMI 62 - ITAT DELHI] the expenditure was incurred on signage for display of the name of the assessee at the dealer’s premises. However, once the same is fixed at dealers site then the Courts have held that it does not satisfy the test of ownership with the assessee and the expenditure is to be allowed as revenue expenditure, We find support from the ratio laid down by the Hon’ble Delhi High Court in CIT vs Honda Siel Power Products Ltd. [2007 (8) TMI 251 - DELHI HIGH COURT]. Thus, we are of the view that the expenditure to the extent claimed by the assessee is to be allowed in the hands of the assessee and not/the entire expenditure.
Disallowance of sales tools expenses - whether the assessee is incurring expenditure to maintain standard format of displaying its products all over India in order to induce prospective customers to clearly identify the exclusive dealers of assessee’s products in India and expenditure incurred was wholly and exclusively for the purpose of his business? - HELD THAT:- The expenditure incurred on Signages expenses was in the nature of advertisement expenditure, which are recurring in nature, incurred for the purpose of business and in the absence of any capital asset being acquired/owned by the assessee, the same was allowable as business deduction under section 37(1) of the Act.
AO while disallowing the claim of the assessee has strongly placed reliance on the decision of Hon’ble Supreme Court in Honda Siel Cars India Ltd. [2017 (6) TMI 524 - SUPREME COURT]. However, the facts of the said case are distinct as in the facts of the said case expenditure was on account of setting up of manufacturing facility and was not for running of the business. The Tribunal in assessee’s own case for Assessment Year 2011-12 while deciding the issue in appeal filed against the order passed u /s 263 of the Act had distinguished the said decision and allowed the claim of the assessee. Hence, Ground of appeal raised by the assessee is allowed.
Capitalisation of royalty - HELD THAT:- The assessee had entered into a technical know-how agreement with Honda Motors Company, Japan under which it was paying lumpsum fee which was the amount in connection with the new models introduced in a year. The total amount paid during the year was ₹ 110.45 crores (approx.) which was’ capitalized by the assessee in its books of accounts and also in the P&L A/c. The assessee also paid running Royalty which was paid for grant of the right to license and manufacturing of two-wheelers in India. The total running Royalty paid was ₹ 378.20 crores (approx.). The said Royalty which is the recurring Royalty paid by the assessee from year to year had been allowed as revenue expenditure in the hands of the assessee in the preceding years. We find no merit in the said exercise carried out by the Assessing Officer and accordingly we direct the Assessing Officer to allow the running Royalty as business expenditure in entirety.
Addition on account of payment of export commission - HELD THAT:- We find that while making the disallowance the TPO has held that assessee failed to demonstrate the benefits derive by it. This proposition of the TPO / DRP also do not hold any water in the light of the principle laid down by the Hon’ble jurisdiction High Court of Delhi in the case of Cushman and Wakefield [2014 (5) TMI 897 - DELHI HIGH COURT] - It would not be out of place to Mention here that in earlier assessment years, this quarrel was restored to the files of the TPO to decide the issue afresh in the light principle laid down by the Hon’ble High Court in the case of Cushman and Wakefield (supra).
As told that in the set aside assessment proceedings the TPO has once again made the addition following the earlier findings that the assessee had failed to provide evidence - we are of the considered view that the assessee has successfully demonstrated not only the benefits but has also shown that the profitability is higher (as per the charts exhibited elsewhere). Considering the totality of the facts we have no hesitation in directing the AO / TPO to delete the impugned addition on account of export commission.
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2020 (9) TMI 1179 - SUPREME COURT
Maintainability of petition under Article 32 of the Constitution - HELD THAT:- The writ petition is accordingly dismissed. However, it shall be open for the petitioners to take appropriate remedy against the order impugned.
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2020 (9) TMI 1178 - SUPREME COURT
Enforcement of Foreign Award - application Under Section 48 of the Arbitration and Conciliation Act, 1996 was dismissed - Limitation for filing an enforcement/ execution petition of a foreign award - condonation of delay in filing the execution petition by the Respondents - Scheme of the 1996 Act for enforcement of New York Convention awards - Malaysian law of public policy while deciding the challenge to the foreign award by Malaysian Courts - foreign award vis-a-vis Public Policy of India.
Limitation for filing an enforcement/execution petition of a foreign award Under Section 47 of the 1996 Act - HELD THAT:- On 10.07.2014, a show cause notice was issued to the Respondents, raising a demand of US $ 77 million, being the Government's share of Profit Petroleum under the PSC. It was contended that the cause of action for filing the enforcement petition Under Sections 47 and 49 arose on 10.07.2014. The enforcement petition was filed on 14.10.2014 i.e. within 3 months from the date when the right to apply accrued - the petition for enforcement of the foreign award was filed within the period of limitation prescribed by Article 137 of the Limitation Act, 1963.
Thus, there are sufficient grounds to condone the delay, if any, in filing the enforcement/execution petition Under Sections 47 and 49, on account of lack of clarity with respect to the period of limitation for enforcement of a foreign award.
Scheme of the 1996 Act for enforcement of New York Convention awards - HELD THAT:- The grounds for refusing enforcement of foreign awards contained in Section 48 are exhaustive, which is evident from the language of the Section, which provides that enforcement may be refused "only if" the Applicant furnishes proof of any of the conditions contained in that provision 12 - The enforcement court is not to correct the errors in the award Under Section 48, or undertake a review on the merits of the award, but is conferred with the limited power to "refuse" enforcement, if the grounds are made out.
If the Court is satisfied that the application Under Section 48 is without merit, and the foreign award is found to be enforceable, then Under Section 49, the award shall be deemed to be a decree of "that Court". The limited purpose of the legal fiction is for the purpose of the enforcement of the foreign award. The concerned High Court would then enforce the award by taking recourse to the provisions of Order XXI of the Code of Civil Procedure.
Whether the Malaysian Courts were justified in applying the Malaysian law of public policy while deciding the challenge to the foreign award? - HELD THAT:- The Malaysian Courts being the seat courts were justified in applying the Malaysian Act to the public policy challenge raised by the Government of India.
The enforcement court would, however, examine the challenge to the award in accordance with the grounds available Under Section 48 of the Act, without being constrained by the findings of the Malaysian Courts. Merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India Under Section 48 of the Indian Arbitration Act, 1996. If the award is found to be violative of the public policy of India, it would not be enforced by the Indian courts. The enforcement court would however not second-guess or review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award.
Whether the foreign award is in conflict with the Public Policy of India? - HELD THAT:- The enforcement of foreign award would be refused Under Section 48(2)(b) only if such enforcement would be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expression "public policy of India" occurring in Section 34(2)(b)(ii) is not applicable where objection is raised to the enforcement of the foreign award Under Section 48(2)(b) - Moreover, Section 48 of the 1996 Act does not give an opportunity to have a 'second look' at the foreign award in the award-enforcement stage. The scope of inquiry Under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy.
The amended Section 48 would not be applicable to the present case, since the court proceedings for enforcement were filed by the Respondents-Claimants on 14.10.2014 i.e. prior to the 2016 Amendment having come into force on 23.10.2015.
The enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.
Application disposed off.
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2020 (9) TMI 1177 - CALCUTTA HIGH COURT
Wilful Defaulter - Reserve Bank's Master Circular on wilful default published on July 1, 2015 - funds diverted by its promoters for purposes other than for which the credit facilities had been accorded - HELD THAT:- On a meaningful reading of the relevant Master Circular, it is evident that any juristic entity can be labelled as a wilful defaulter though the mens rea element of the wilfulness of the default has, per force, to fasten onto some human agency. In other words, the human agencies in control of an inanimate juristic entity have to be found guilty of wilful default within the meaning of such expression as used in the Master Circular for the penal measures to attach to the juristic entity in default and also to the human agencies found responsible for the wilful default - There could be myriad situations covered by the Master Circular and the finding of wilful default. There could be a case where credit facilities were granted without any securities being obtained or personal guarantees being sought. In such a case, even though the human agencies responsible for the actions of the inanimate juristic entity may be found to be in wilful default along with the juristic entity, that is, the borrower, no independent financial obligation would fasten to the human agencies since they may not have extended any guarantee or created any mortgage of their personal properties.
In the present case, since no personal guarantee was furnished by any of the writ petitioners, the moment the money due to Axis Bank was paid in full or was agreed to be received by way of a compromise, the writ petitioners stood rid of their burden as wilful defaulters and their names were liable to be removed from the relevant list. If, however, the writ petitioners continued in their capacity as guarantors in respect of the relevant transactions, the writ petitioners would have continued to be liable till the entire debt was discharged. But as the writ petitioners did not have any personal liability, the moment the resolution was approved and Axis Bank received the payment or is deemed to have received the payment, the names of the petitioners ought to have been taken off the list of wilful defaulters. As a consequence, the moment the writ petitioners were entitled to have their names removed from the list, the first sentence in the relevant sub- clause would not apply.
Though the Reserve Bank has appeared at a belated stage, it has appropriately indicated the position in terms of its Master Circular of July 1, 2015. Accordingly, the Reserve Bank should take immediate steps to ensure that the names of the writ petitioners are removed from the list of wilful defaulters and the deletion will take effect from February 28, 2019.
Appeal disposed off.
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2020 (9) TMI 1176 - ITAT DELHI
TP Adjustment - upward adjustment on account of payment for support services - quarrel relates to the receipt of support services for which the appellant has taken TNM Method as the Most Appropriate Method - HELD THAT:- A perusal of the profit and loss account of the appellant company shows that the assessee has not incurred a single rupee on employee cost. Even in the notes of accounts it is mentioned that no provision for retirement benefits has been made in these financial statements as there were no employees on the payroll of the company during the year. These facts clearly show that the assessee was totally dependent on the AE for running its business. But for the support and services provided by the AE, the assessee could not have booked turnover of ₹ 917 crores.
On the basis of these time sheets of the employees of BGEPIL, it raised debit notes on the assessee. This further supports the fact that the appellant was fully dependent on the employees of BGEPIL for support services including assistance in procuring and selling LNG, obtaining information concerning industrial and commercial matters, etc. The receipt of services further find support from the evidences in the form of documents showing compliance to various acts like filing of Income tax return, VAT return, preparation of financial statements, tax audit report, time sheets filled in by BGEPIL employees,
TPO has grossly erred in appreciating the facts in true perspective when he held that the employees of BGEIPL sitting in UK cannot comply with tax provisions in India. The fact of the matter is that BGEPIL was rendering these services from its office situated in India and the employees were very much based in India.
The Tribunal in assessee's own case for A.Y. 2010-11 [2019 (1) TMI 107 - ITAT DELHI] on identical set of facts has deleted the adjustment made on account of disallowance of payment of management services and unit charges by the assessee to its AE - Thus no merit in the upward adjustment and the same is directed to be deleted. - Decided in favour of assessee.
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2020 (9) TMI 1175 - SUPREME COURT
Permission for withdrawal of SLP - the petitioner seeks permission to withdraw the petition - HELD THAT:- The Special Leave Petition is dismissed as withdrawn.
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2020 (9) TMI 1174 - SUPREME COURT
Forgery - debit notes created by the Respondents were totally fraudulent - amounts owed by the Appellants to the Respondents or not - applicability of Section 195(1)(b)(i) as well as Section 195(1)(b)(ii) of the CrPC. - HELD THAT:- There is no doubt that realising the difficulties in their way, the Appellants suddenly changed course, and applied to the Magistrate vide application dated 09.05.2011 to convert what was a properly drafted application under Section 195 read with section 340 of the CrPC, into a private complaint. A reading of the two complaints leaves no manner of doubt that they have been drafted keeping the ingredients of Sections 191 and 192 of the IPC alone in mind – the only argument from the Appellants now being that since certain debit notes were forged prior to their being introduced in the court proceedings, not only would the ratio in IQBAL SINGH MARWAH & ANR. VERSUS MEENAKSHI MARWAH & ANR. [2005 (3) TMI 750 - SUPREME COURT] apply, but also that the ingredients of the “forgery” sections of the IPC have now been made out. While it is important to bear in mind that in genuine cases where the ingredients of forgery as defined in Section 463 of the IPC have been made out, and that therefore, a private complainant should not be left remediless, yet it is equally important to bear in mind the admonition laid down in an early judgment of this Court.
Whether the “forging” of the debit notes, so strongly relied upon by Shri Mishra as being offences under Sections 463 and 464 of the IPC, can at all be said to attract the provisions of these Sections? - HELD THAT:- Even if we are to put aside all the averments made in the two complaints (which clearly attract the provisions of Sections 191 and 192 of the Penal Code), and were to concentrate only on the debit notes that are said to have been “created” by the Respondents, it is clear that the debit notes were not “false documents” under Section 464 of the IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person. Since this basic ingredient of forgery itself is not made out, none of the sections that are sought to be relied upon in Chapter XVIII of the IPC can thus be said to be even prima facie attracted in the facts of this case.
Writ petitions that were filed against this order have been dismissed by the impugned judgment - Appeal disposed off.
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2020 (9) TMI 1173 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - application rejected on the ground that the application is barred by limitation and was filled before it more than 3 years after the default - time limitation - HELD THAT:- The Financial Creditors issued a notice of recall dated 7th December, 2017 demanding the payment of the total overdues as on that date within a period of 15 days from the date of notice of recall. Thus the payment for Quarter ending December 2017 to September 2025 will become due and payable and come under default on 22nd December, 2017 i.e. on the expiry of 15 days from the date of default notice which was served upon the Corporate Debtor for recalling the loans. Thus the default cannot occur before the amount becomes due and payable as per the Second Amendment Agreement. Also, on entering into the Second Amendment Agreement on 31st march, 2015 the earlier Agreement shall be subsumed with the Amended Agreement and all the prior Company Appeal (AT) (Insolvency) No.1448 of 2019 defaults shall become irrelevant and the date of default shall be decided as per the Second Amendment Agreement dated 31st March, 2015. Therefore, the Adjudication Authority have wrongly considered the date of default to be 16th March, 2015 for computation of limitation period to file an application before it.
In case there is any discrepancy found in the application relating to the date of default being wrongly pleaded by the financial creditors as contended by the Corporate Debtor. The Adjudicating Authority may ask the financial Creditors to rectify the same. The limitation is a mixed question of law and facts therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition should not be rejected by selectively considering the documents on record. The application filed by the Corporate Debtor under Section 7 was required to be admitted by the Adjudicating Authority, but the Adjudicating Authority failed to consider the matter in proper perspective.
Appeal allowed.
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2020 (9) TMI 1172 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU BENCH
Seeking substantive consolidation of the Corporate Debtors into a single proceedings - acceptance, confirmation and all other actions with respect to the resolution plan for the Corporate Debtors - whether the Applicant, being the Operational Creditor, initiating CIRP respect of Respondent No. 1, has any locus standi to maintain the instant Application? - HELD THAT:- Since COC of R1 Company has unanimously decided to liquidate it by appointing Ms. R. Bhuvaneswari as Liquidator in the place of Mr. Srivastava, we hereby permit and direct an appropriate Application can be filed by RP of 1st Respondent by seeking to liquidate the Corporate Debtor and for appointment of Liquidator.
The instant Application is filed on misconception of facts and law, and the Applicant too has no locus to interfere in the CIRP of Respondent No.1 by filing the instant Application and it also lacks merits - Application rejected.
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2020 (9) TMI 1171 - PUNJAB AND HARYANA HIGH COURT
Mr. Satya Pal Jain, Additional Solicitor General of India with Mr. Saurav Goyal, Advocate accepts notice on behalf of respondent no. 1. He prays for some time to assist the court - Mr. Aman Bahri, Addl. A.G. Haryana also prays for time to seek instructions and assist the court.
Till then no coercive action shall be taken.
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