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Showing 121 to 140 of 1414 Records
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2021 (8) TMI 1295 - ORISSA HIGH COURT
Delay in filing petition - Redetermination of the land value under Section 3-G(5) of the National Highways Act, 1956 - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- In the present case, admittedly the last date for filing of the petitions under Section 34 of the A&C Act by the NHAI to challenge the awards in question was 29th April, 2019. In terms of Section 34(3) of the A&C Act it was not possible for any challenge to be entertained beyond the outer limit of 120 days.
The language of the provision is abundantly clear and does not admit of any ambiguity. There is no question of entertaining the petitions of the District Judge beyond the 120 days period.
The Court finds no error having been committed by the learned District Judge in the impugned orders - Petition dismissed.
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2021 (8) TMI 1294 - MADRAS HIGH COURT
Validity of reopening of assessment u/s 147 - condition precedent for re~opening of an assessment under Section 147 of the Act is not satisfied in the present case - HELD THAT:- An order of assessment under Section 143(3) had been passed at the original instance and thus the proviso to Section 147 would stand attracted and would have to be satisfied. The proviso casts responsibility upon the Department to establish that the escapement of income alleged has been occasioned by virtue of the assessee not having made a full and true disclosure of its taxable income in its return of income/in the course of original assessment.
Also attention drawn to the reasons recorded, communicated on 09.07.2021, wherein, in both the points cited as being the basis for the impugned re~assessment, reference is made to verification of the records of assessment including Form 3CD of the audit report. Thus, and prima facie, the documents relied upon in support of proceedings for re~assessment are very much part of the records. According to the petitioner, there is no other, let alone tangible material, that has been discerned to justify the impugned proceedings.
As the petitioner has, and rightly, filed an objection to the assumption of jurisdiction before the Assessing Authority and orders are awaited in regard to the same, it would be appropriate that the procedure for re-assessments, as set out by the Hon’ble Supreme Court in the case of GKN Drive Shafts[2002 (11) TMI 7 - SUPREME COURT] is complied with.
Since the impugned proceedings are yet to culminate in a speaking order on the aspect of jurisdiction, I am of the view that this Writ Petition is pre-mature and that the petitioner should await passing of the speaking order. Let the respondent hear the petitioner and pass orders on the objections dated 12.07.2021 within a period of four (4) weeks from today.
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2021 (8) TMI 1293 - SUPREME COURT
Retention of Government accommodation by a retired personnel - HELD THAT:- The orders of the High Court are unsustainable. In Shiv Sagar Tiwari [1996 (12) TMI 397 - SUPREME COURT], the large-scale allotment of Government houses made out of turn in eleven categories was examined under the Allotment of Government Residences (General Pool in Delhi) Rules, 1963. All such categories were of serving employees who were given out-of-turn allotments. The then Minister of Urban Development in the Central Government was asked to pay a sum of ₹ 60 lakhs as exemplary damages by order dated 8.11.1996.
The Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time. It was held that the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.
In the present case, Dhar was an officer of the Intelligence Bureau. He has drawn his salary and availed of alternative accommodation for 15 years after his retirement along with pensionary benefits. There is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee. The government accommodation is meant for the serving government employees to facilitate the discharge of their duties. The government accommodation is not meant for the retirees. The accommodation to the retirees is at the cost of serving officers - Dhar and such like persons are not from the poorest Section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory. No one is sure that at what point of time the condition will be conducive to the satisfaction of the migrants. Such benevolence and preferential right to Section of the citizens is unfair to the serving officers. Dhar like persons should have compassion for their fellow employees who may be without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse.
The orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational - Appeal allowed.
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2021 (8) TMI 1292 - ITAT DELHI
Undisclosed income - mismatch of ITS details as per 26AS which showed gross receipts including FDR interest - HELD THAT:- It is a settled proposition of law that in case of difference between the assessees books of account and as per the TDS certificate, then on the said difference, the only embedded portion of the profits is to be taken into consideration and addition is to be made thereon. There are number of judicial pronouncements by which the principle to this effect has been laid down that the total sale cannot represent as the profit of the assessee. The net profit rate has to be adopted and once the net profit is adopted it cannot be said that there is perversity of approach. Thus, taking into consideration the entire aspect of the matter, we do not find any justification in making the addition of the entire turnover to the income of the assessee. Having regard to the peculiar facts and circumstances of the case, we find it justified to restrict the addition at 5% of the net profit on the gross receipt of ₹ 11,93,79,537/-. The Ld. Assessing Officer is directed to grant relief to the assessee as on the above terms.
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2021 (8) TMI 1291 - ORISSA HIGH COURT
Validity of Faceless Assessment - despite the Petitioner requesting for a personal hearing in terms of Section 144B(7)(vii) of the Income Tax Act, 1961, the impugned assessment order was passed without affording such a hearing - HELD THAT:- Not only is the Assessee given a right to make a request for personal hearing, but it is mandatory for the authority to provide for such personal hearing.
With there being no dispute that the Petitioner did make such a request, it was incumbent on the Opposite Parties to have given it an opportunity of being heard. The reply filed by the Opposite Parties only deals with the merits of the assessment itself and does not dispute that the above mandatory procedural requirement was not complied with.
In that view of the matter, on this short ground, the impugned assessment order is set aside and the matter is remanded to the assessing officer, i.e. National e-Assessment Centre, for compliance of the mandatory requirement of Section 144 B (7) (vii) of the Act and provide a personal hearing to the Petitioner as requested by it on a date and time to be conveyed to it at least one week in advance. It is made clear that the hearing can be in either physical or virtual mode. A fresh assessment order shall be passed thereafter within three months. If aggrieved by such order, it would be open to the Petitioner to seek appropriate remedies in accordance with law.
The Court makes it clear that it has not expressed any view on the merits of the case, except on the above limited procedural error of non-compliance with the mandatory requirement of Section 144 B (7) (vii) of the Act. The writ petition is disposed of in the above terms.
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2021 (8) TMI 1290 - ORISSA HIGH COURT
Maintainability of successive Bail Application - whether successive bail application can be entertained and a different view can be taken on the already existing materials when the earlier bail application was rejected on merit, merely because some documents/statements available in the case record were not taken into account? - HELD THAT:- It is the settled position of law that successive bail applications are permissible under the changed circumstances. The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.
Detailed discussion of the evidence and elaborate documentation on the merits of the case is to be avoided while considering an application for bail. No party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Where the offence is of serious nature, the question of grant of bail has to be decided mainly keeping in view the nature and gravity of the accusation, character of the evidence, chance of absconding of the accused, chance of tampering with the evidence and also the larger interest of the public.
This bail application, being a successive one moved within two months of the rejection of the earlier bail application before the learned trial Court without any changed circumstances and after its rejection, the petitioner has rushed to this Court again, the petitioner cannot be released on bail.
The application for bail stands rejected.
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2021 (8) TMI 1289 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Action of Liquidator accepting the claim of the Appellant - ex-parte order - principles of natural justice - time limitation - HELD THAT:- In view that the order dated 19th January, 2021 which could not be complied as three months are already over, anguish is expressed with regard to the delay. The difficulties of the litigants as well as difficulties being faced by the Tribunal are realised. In the circumstances, the present Appeal is disposed off, with only a request to the Adjudicating Authority to take out time and decide the present IAs at the earliest.
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2021 (8) TMI 1288 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Oppression and Mismanagement - Jurisdiction - power of this Bench is to appoint an independent Commissioner - appointment with the fact finding mission and to submit a report so that the information which is essentially required for the just adjudication of the list between the parties, is made available - HELD THAT:- The legislation is very clear that when the affairs of the company are conducted in a manner prejudicial to public interest or in any manner prejudicial or oppressive to any member or members or in a manner prejudicial to the interest of company, the Tribunal under Section 242(2) clause (a)&(m) and Section 242(4) vested with the power to pass any order in the best interest of public and in the best interest of company.
The Tribunal is vested with the powers given under Companies Act and Insolvency & Bankruptcy Code are absolutely conscious the repercussions, if at all, a petition under Section 7 is initiated by any financial creditors against this company, when all the independent directors of the company have resigned expressing their inability to continue on the board of the company for the reason that the financial position is very badly suffered and executive director i.e. the petitioner is not taking any steps to regulate the affairs of the company and the wife of Mr. Shushil Gupta is not taking cognizance of any facts. It appears the institutions are proceedings against them and the Hotels are closed and the situations is becoming bad to worse - Even after taking cognizance of these issues which are brought to our knowledge, in the course of hearing by both the parties, if this Bench does not make any efforts to get the real factual position in the best interest of the company or in the public interest for the reason that the public money involved and there are public shareholders, the purpose of adjudication by this Tribunal will not be served.
It is directed that a commissioner be appointed on a fact finding mission with the power and responsibility as contained below.
List the matter for submission of report by Commissioner on 02.09.2021.
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2021 (8) TMI 1287 - ITAT DELHI
Addition u/s 40(a)(ia) - assessee contended that during appellate proceedings, assessee failed to get the certificate u/s 201 - HELD THAT:- We are of the considered view that when the assessee has obtained the certificate from M/s. Bajaj Auto Finance Ltd. u/s 201 of the Act after first appellate proceedings, the AO is to allow the same after due verification. So far as interest disallowed in case of Barclays Investment & Loan is concerned, assessee’s contention is that it has closed its operation in India. AO is directed to conduct the proper enquiry from the available sources if certificate issued by Barclays Investment & Loan finds corroboration from some other record and the issue may be decided accordingly after providing an opportunity of being heard to the assessee. Consequently, ground no.1 is determined in favour of the assessee for statistical purposes.
Disallowance of interest @ 12% per annum on the advance made as the plant and machinery was not put to use - CIT(A) confirmed the addition - HELD THAT:- We are of the considered view that when expenditure/advances paid in question for purchase of plant and machinery by the assessee during the year under assessment was not for extension of any existing business, the same is allowable u/s 36(1)(iii) of the Act. So, the addition made by the AO and confirmed by the ld. CIT (A) is ordered to be deleted. Consequently, ground no.2 is determined in favour of the assessee.
Addition on account of excessive bill discounting charges paid - assessee has failed to bring on record any documentary evidence regarding existence of any such agreement between the parties to substantiate its claim without interest - HELD THAT:- When the facts have come on record that in case of Sandhar Automotives (Dhumspur), the assessee is paying bill discounting charges from 15% to 16% but, at the same time, it is paying bill discounting charges @ 19% to Sandhar Enterprises which is reconcilable and as such, excess interest paid by the assessee to Sandhar Enterprises to the tune of ₹ 1,40,946/- has been rightly disallowed by the ld. CIT(A). So, we find no ground to interfere in the findings returned by the ld. CIT (A). Consequently, ground no.3 is determined against the assessee.
Proportionate disallowance of interest - addition made by the AO by calculating the interest @ 12% per annum - HELD THAT:- When assessee is having huge interest free funds at its disposal, the presumption lies in favour of assessee that interest free funds were utilized for giving interest free advances - Following the cases S.A. Builders Ltd. [2006 (12) TMI 82 - SUPREME COURT] and Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] we are of the considered view that addition made by the AO and confirmed by the ld.CIT(A) is not sustainable, hence ordered to be deleted. So, ground no.4 is determined in favour of the assessee.
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2021 (8) TMI 1286 - MADRAS HIGH COURT
Jurisdiction - authority of the NCLT to continue with the avoidance application despite the resolution plan already being in place - HELD THAT:- The legal issue is, indeed, of some substance and whether it is ₹ 15/- or ₹ 150 crore involved, it makes little difference. It is the importance of the legal issue that may have impelled this Court to receive the petition and, to be fair to the petitioner, the petitioner has been substantially heard. However, since the matter pertains to the Insolvency and Bankruptcy Code, which, as its name suggests, is a code unto itself, and specialised fora are created thereby or, at any rate to entertain proceedings thereunder, it may be better to allow the NCLT to answer the legal issue before the view expressed is tested elsewhere.
Petition is disposed of by requesting the NCLT, Chennai, to dispose of the avoidance application together with the other applications that may have been filed in connection therewith as expeditiously as the business of that forum may permit, and, preferably, within eight weeks of the receipt of a copy of this order.
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2021 (8) TMI 1285 - SC ORDER
Penalty u/s 271(1)(c) - no proper recording of satisfaction - as per HC there is no record of satisfaction by the AO that there was any concealment of income or that any inaccurate particulars were furnished by the assessee. This being a sine qua non for initiation of penalty proceedings, in the absence of such petition, the two authorities have quite correctly ordered the dropping of penalty proceedings against the petitioner - HELD THAT:- We are not inclined to interfere with the impugned order. The special leave petition is, accordingly, dismissed.
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2021 (8) TMI 1284 - ITAT AHMEDABAD
Addition u/s 68 - genuineness of the transactions - stark difference between the amount mentioned by the assessee in his books and that shown in the books of M/s. Basant Marketing - HELD THAT:- The assessee has furnished copy of audited accounts, balance sheet and P&L account along with annexure, copy of ledger of Basant Marketing P. Ltd. And during the course of assessment proceedings, Basant Marketing P. Ltd. categorically confirmed the entry of ₹ 2,43,00,000/- with copy of bank accounts reflecting the transaction therein. And M/s. Basant Marketing P. Ltd. has confirmed amount outstanding in the account of assessee company is only ₹ 1,93,00,000/- which has been repaid during F.Y. 2014-15. And so far remaining amount 50,00,000/- is concerned, assessee filed separate proof of payment to the A.O. and again filed before the Ld. CIT(A) and it was at Calcutta conducted detailed enquiry of Basant Marketing P. Ltd. wherein it is mentioned that Basant Marketing is not a fake company and its activities are genuine.
Assessee has filed an order of ITAT Mumbai Benches [2019 (6) TMI 1606 - ITAT MUMBAI] wherein one person namely Shri Harsh Dalmia was the beneficiary to the tune of ₹ 1,14,85,500/- from the group companies namely Basant Marketing P. Ltd. who was assessed to tax with them who provided accommodation entry and Department issued notice and Ld. A.O. made addition in the case of Harsh Dalmia.
Thereafter in appeal before the Ld. CIT(A) relief was granted to the assessee and thereafter Department appeal was dismissed by the ITAT holding that activities of Basant Marketing are found to be genuine. And thereafter no appeal was filed by the Department against the order of the ITAT Mumbai Benches. So considering above all these facts, we are of the opinion that order of Ld. CIT(A) is detailed and reasoned and same does not require any kind of interference at our end. - Decided against revenue.
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2021 (8) TMI 1283 - MADHYA PRADESH HIGH COURT
Dishonor of cheque - insufficient funds - Termination of agreement - appellant submits that as the respondent had been convicted for an offence under Section 138 of the Negotiable Instruments Act, the appellant was well within its right to terminate the dealership of the respondent - HELD THAT:- In criminal law, the offences are of two kinds: Offences may be mala in se and/or malum prohibitum. Offences mala in se are those offences which are repugnant to human conscience and are offences involving moral turpitude. Therefore, acts such as murder, theft, rape, cheating etc., are offences mala in se. Per contra, the offences which are malum prohibitum are those acts, though not morally repugnant, are made offences by an act of legislature as in the case of Section 138 under the Negotiable Instruments Act. It is not necessary that an act which is an offence malum prohibitum in India be an offence in any other country. Clause 45 (d) is wide and open ended and does not define a criminal offence for which there can be cancellation of dealership by its invocation. The said clause cannot be interpreted pedantically to include each and every act or omission which may constitute an offence under the jus scriptum.
In an offence under Section 138 of the Negotiable Instruments Act, knowledge that the accused did not have sufficient balance in his bank account while issuing the cheque is preponderant on the part of the accused. That may be so, but the same does not make the act morally repugnant.
The issue is no longer res integra as the Supreme Court in P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has held that the act constituting the offence u/s. 138 of the NI Act is of a civil nature with a criminal liability. Invocation of clause 45(d) can only be in cases involving moral turpitude or those offences where the company itself is a victim and the licensee the perpetrator of the offence. Therefore, impugned order passed by the learned single Judge is just and proper and the present appeal is without substance.
Appeal dismissed.
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2021 (8) TMI 1282 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
Withdrawal of application u/s 12A of IBC, 2016 - Consideration of settlement proposed by the Applicant - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of National Company Law Tribunal Rules, 2016 - HELD THAT:- The "collective commercial wisdom" of the CoC cannot be called in question by this Adjudicating Authority only when the said decision has been taken by the CoC in conformity within the framework of IBC, 2016. However, in the present case, instead, without even receiving single penny from the promoter of the Corporate Debtor, the CoC has voted under Section 12A of IBC, 2016 for the withdrawal of the CIRP in relation to the Corporate Debtor, which is not a settlement simpliciter rather than a "Business Restructuring Plan", as submitted by the Learned Senior Counsel for the Corporate Debtor.
Whether based upon a "Business Restructuring Plan" submitted by the promoter of the Corporate Debtor and in an Application filed under Section 12A of IBC, 2016 can this Adjudicating Authority allow for the withdrawal of the CIRP in relation to the Corporate Debtor? - HELD THAT:- It should also be noted that the powers of this Adjudicating Authority cannot be circumscribed on the ground that "commercial wisdom" of the CoC would prevail over any other provisions of the IBC, 2016. Further, it should also be borne in mind that this Adjudicating Authority is not a mere stamping authority so as to endorse the decision of the CoC and is required to examine whether such decision is falling within the contours of IBC, 2016.
The Financial Creditor has full freedom to decide on the quantum of amount which they are willing to accept in respect of the overall dues pending against the Corporate Debtor and this Adjudicating Authority consciously restrains from making any observation in this regard and leaves the same to the "commercial wisdom" of the CoC. However, this Adjudicating Authority is duty bound to examine the consequences of a purported Settlement proposal which is proposed by the promoter of the Corporate Debtor and the position of the Corporate Debtor once the application for withdrawal of the CIRP is allowed and also the default if any committed by the promoter of the Corporate Debtor in respect of the repayment of the money which is spread over a period of 180 days.
In the present Application, the Applicant has prayed for the Liquidation of the Corporate Debtor in case of the failure of the terms of the Settlement proposal as given by the promoter of the Corporate Debtor - once the Petitioning Creditor has agreed to withdraw the Petition, there cannot be any strings attached to the same. In the event of a subsequent default, an application seeking revival of the same cannot be filed, since it must be borne in mind that the Application filed under Section 7, 9 and 10 of IBC, 2016 is for Insolvency Resolution of the Corporate Debtor and not for the recovery of the money from the Corporate Debtor.
A settlement simpliciter under Section 12A of IBC, 2016 is different from a Resolution Plan given under Section 30 and 31 of IBC, 2016. However, in the present case, the promoter of the Corporate Debtor who is ineligible to submit a Resolution Plan because of Section 29A of IBC, 2016 is trying to provide a Settlement proposal, which is similar to a Resolution Plan under Section 12A of IBC, 2016 - this Tribunal is of the view that the CoC ought to have voted for the proposal only if they have received the money in full as per the Settlement proposal given by the promoter of the Corporate Debtor and if such being the case, the apprehension of default on the part of the promoter of the Corporate Debtor would not have arisen and that the Tribunal would have no difficulty in approving the proposal under Section 12A of IBC, 2016.
The Settlement Proposal as given by the Corporate Debtor and the approval of the withdrawal of the CIRP in relation to the Corporate Debtor by the CoC in its 17th meeting, is not in conformity with the provisions of IBC, 2016 and also not in line with the judicial conscientiousness of this Adjudicating Authority and also transcends beyond the scope of IBC, 2016 - the purported Settlement Plan proposed by the promoter of the Corporate Debtor is not a Settlement simpliciter as envisaged under Section 12A of IBC, 2016 rather than it is a "Business Restructuring Plan".
As per the settlement Plan, there is no final offer made by the promoter of the Corporate Debtor and also the acceptance made by the CoC in this regard. There is no finality reached between the promoter of the Corporate Debtor and the CoC as per Clause 2 of Chapter VIII of the Settlement proposal; hence based on ambiguity of terms of settlement, we cannot order for withdrawal of the CIRP - prayer seeking for liquidation of the Corporate Debtor in case of any default in the proposed Settlement Plan transcends beyond the scope of IBC, 2016.
The Applicantion under Section 12A of IBC, 2016 stands dismissed.
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2021 (8) TMI 1281 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking withdrawal of application u/s 12A of the IBC - CoC has not complied the provisions of IBC as well as Regulation as regards time limitation or not - receiving of outstanding amount constituting monetary committee inline of IBC and CIRP Regulation or not - backup plan is provided in case of failure to meet short fall within the time line agreed by the parties or not - it is also alleged that Settlement proposal contends a lot of uncertainty and depends on future events - HELD THAT:- The legislation has provided a procedure for withdrawal of Application under Section 7, 9 or 10 of the IBC. In this case, the CoC has been constituted, therefore, the Application for withdrawal approved by the 99.9% voting shares of the CoC and the Application has been filed through the RP as provided under Regulation 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations).
There is a provision in the settlement deed that in case the settlement fails, the lenders may file Application for revival of CIRP or may file Application for initiation of contempt proceedings against the promoters of the Company. None of the conditions of settlement is against the provisions of IBC and Regulation and CoC has taken a commercial decision by voting shares of 99.9%. In such a situation, it is not appropriate to dismiss the Application on the ground that the CoC has not taken steps in time bound manner as provided in IBC and Regulations.
The Application under Section 12A is allowed and the Application filed by STCI Finance Ltd. under Section 7 of the IBC is withdrawn - Application allowed.
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2021 (8) TMI 1280 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI COURT-III
Seeking exclusion of 87 days from the calculation of 180 days as provided by Section 12 of Insolvency & Bankruptcy Code, 2016 - Rule 11 of the NCLT Rules, 2016 read with Regulation 40 (e) of the IBBI (CIRP) Regulations, 2016 - HELD THAT:- Having heard the submissions and perused the contents of the Application and also that the CO VID- 19 has impacted every Sector and the exclusion sought is primarily due to the reason of COVID-19, this Tribunal allows this Application.
Application allowed.
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2021 (8) TMI 1279 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - petitioner issued notice under Section 13(2) of the SARFAESI Act, 2002 on 25.05.2015 and the Corporate Debtor also responded to these notices - time limitation - HELD THAT:- This Petition has been filed by Reliance Asset Reconstruction Ltd (Financial Creditor) against Narendra Plastics Pvt. Ltd (Respondent/ Corporate Debtor) u/s.7 of the IBC for working capital loan of ₹ 20 crore sanctioned by ING Vysya Bank Ltd. (original lender) on 03.09.2012. The sanctioned loan limit were subsequently reduced and revised by ING Vysya Bank Ltd (Original Lender) on 04.06.2013. It is on record before the bench that the Assignment Agreement was executed between the original lender ING Vysya Bank and the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd. on 19.09.2014. The cut-off date under the Assignment Agreement was 31.08.2014. Under this agreement all benefits pertaining to the loans availed by the Corporate Debtor including all realization and recoveries made on and after the cut-off date were to be for the benefit of the Financial Creditor i.e., Reliance Asset Reconstruction Company Ltd.
The debt due from the Corporate Debtor to the original lender were assigned by the original lender to the Financial Creditor vide Assignment Agreement with effect from 31.08.2014. In such event the bench would construe that, any debt which may be due from the Corporate Debtor to the Financial Creditor ought to be reflected in the books of the Financial Creditor. However, a perusal of Exhibit ‘B’ and ‘C’ of Company Petition shows that the amount outstanding and payable by the Corporate Debtor as on 31.08.2014 is reflected in the ledger account of a completely third party i.e., Kotak Mahindra Bank about which, the bench notes, no reference has been made by the Financial Creditor in the Company Petition.
It is very evident to this bench that this debt does not appear in the books of the Financial Creditor who has filed this Petition. The Bench also notes that the original lender i.e., ING Vysya Bank got merged with Kotak Mahindra Bank on 01.04.2015 i.e., much after the execution of the Assignment Agreement by which the debt stood transferred to the Financial Creditor. This bench notes that such merger between ING Vysya with Kotak would have no effect on the assignment of debt to the Financial Creditor and it ought to be reflected in the books of the Financial Creditor . However, as per the document in support produced in the Petition by the Petitioner i.e., Financial Creditor, the debt appears in the books of Kotak and not of the Financial Creditor. Before this bench no document has been produced by the Financial Creditor to indicate that this debt payable by the Corporate Debtor is due in the books of Financial Creditor - The reliance of the Financial Creditor on the ledger account appearing in the books of Kotak would only lead this Bench to believe that the assignment is not an effective assignment at all and therefore, the bench concludes that in the given situation the Financial Creditor has no locus to file this Company Petition as a Financial Creditor.
This Company Petition has been filed by the Financial Creditor u/s.7 on 08.05.2019. In Part-IV of the Petition the Financial Creditor has put the date of NPA as 30.06.2014. Therefore, the issue relating to limitation arises in the Petition as the Petition prima facie has been filed after more than 5 years. In the Petition no pleadings relating to extension/ exclusion of time to compute the period of limitation has been made. The bench notes that subsequently also no amendments in the Petition relating to extension of limitation or exclusion to compute the period of limitation has been made.
It is well settled that the plea of limitation must be specifically pleaded by the Petitioner in their pleadings. In the instant case, the Financial Creditor has not specifically pleaded in its Application that it is within limitation and/ or sought condonation of delay in any respect. The Company Petition which has been filed on 07.05.2019 mentions the date of NPA as 30.06.2014.
Since there is no averment or seeking condonation of delay in the Company Petition, therefore, this bench is of the view that since there is no averment or pleading by the Petitioner explaining the issue of limitation seeking condonation of delay, this Petition is barred by limitation and the bench is inclined to “dismiss” it.
Petition dismissed.
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2021 (8) TMI 1278 - DELHI HIGH COURT
Refund determined u/s 143(3) inclusive of interest u/s 244A - HELD THAT:- On instructions, learned counsel for respondent nos.2 & 3 states that the petitioner’s rectification application dated 19th December, 2019 shall be disposed of within a period of six weeks and the refund shall be processed within three weeks thereafter.
Consequently, this Court directs the respondent no.2 to dispose of the petitioner’s aforesaid rectification application, in accordance with law, within six weeks by way of a reasoned order. The respondent no.2 shall also process and pay the petitioner’s refund within three weeks thereafter, in accordance with law. All the rights and contentions of the parties are left open.
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2021 (8) TMI 1277 - MADRAS HIGH COURT
Offences u/s 276CC and 276C (2) - petitioner company had filed self assessment tax - petitioner company had filed self assessment tax on 29.11.2014 for the financial year 2013-14 relevant to the assessment year 2014-15 which is defective for non payment of self assessment tax u/s 140A before furnishing the return of income which constitutes an offence u/s 276 CC and 276 C(2) - contention of the learned counsel for the petitioners is that the petitioners have paid the entire dues to the Income Tax department along with interest - HELD THAT:- It is not in dispute that the petitioners had paid the entire amount with interest to the Income Tax department, which is confirmed by the Deputy Commissioner of the Income Tax, Corporate Circle2(2), Chennai-34. The offences alleged are only technical offences and there is no material to show that there was any deliberate and conscious evasion of tax on the part of the petitioners. In view of the same, this Court is of the view that the proceedings are liable to be quashed and accordingly, quashed. Resultantly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are also closed.
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2021 (8) TMI 1276 - DELHI HIGH COURT
Simultaneous proceedings by two intelligence agencies - investigation in relation to the affairs of the company for the violation of the provisions of GST Act was going on by DGST, then the petitioner received summons dated 28th July 2021 from the respondent No. 1-DGGI, Meerut Unit - whether the petitioner can be subjected to two intelligence agencies simultaneously for the alleged violations of the provisions of GST Act - HELD THAT:- Prima facie, the contentions raised by the learned counsel for the respondent No. 1 are untenable, for the reason, if a citizen is aggrieved by issuance of summons and finds that there is illegality or unconstitutionality therein, he has a right to approach the Court. As regards the issue of territorial jurisdiction of this Court is concerned, the petitioner company is working in Delhi and it is already under investigation by the Delhi State Goods and Services Tax Unit and the plea of the learned counsel for the respondent No. 1 that no challenge to summons issued by DGGI, Meerut Zone can be entertained by this Court is prima facie not correct.
List this petition on 21st September 2021.
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