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2016 (9) TMI 1039 - GUJARAT HIGH COURT

2016 (9) TMI 1039 - GUJARAT HIGH COURT - TMI - Recovery proceedings - valid debtor - Held that:- M/s. N.K.Industries Ltd. waived its rights under agreement dated 02.09.2011 and subsequent agreement dated 05.01.2013 and also waived execution of the sale deed. In turn, M/s. Banpal Oil Chem Pvt. Ltd agreed to return consideration of ₹ 10.75 crores already paid by M/s. N.K.Industries Ltd. and M/s. N.K.Industries Ltd. withdrew the suit for specific performance from the civil court. We notice th .....

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anpal Oil Chem Pvt. Ltd which can be recovered directly for the tax dues of M/s. Banpal Oil Chem Pvt. Ltd. The impugned order dated 10.06.2016 is, therefore, set aside. We make it clear that if the department has any recovery to be made either against M/s. Banpal Oil Chem Pvt. Ltd or M/s. N.K.Industries Ltd., it is always open for them to proceed in accordance with law. - SPECIAL CIVIL APPLICATION NO. 12508 of 2016 - Dated:- 21-9-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITION .....

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tered into agreement with one M/s. Banpal Oil Chem Pvt. Ltd on 02.09.2011 for assignment of lease and sale of factory premises situated at Plot No. 144/64, 144/65 and 144/66, GIDC, Chandisar, Palanpur admeasuring land area of 23146.64 sq.mtrs alongwith factory building constructed thereon and the entire plant and machinery situated. The sale consideration indicated was ₹ 11.11 crores. Under such agreement, M/s. N.K.Industries Ltd. had paid a sum of ₹ 10.75 crores (rounded off) to M/s .....

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the parties would withdraw multiple proceedings from different courts. Since copy of this settlement agreement is not filed by either side, the same is taken on record. 3. It appears that despite this settlement agreement dated 09.04.2015, the issues could not be completely resolved. The petitioner, therefore, withheld the balance payment of ₹ 2.42 crores in favour of M/s. Banpal Oil Chem Pvt. Ltd. Finally, the petitioner M/s. N.K.Industries Ltd. and M/s. Banpal Oil Chem Pvt. Ltd executed .....

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ppeal from order before the High Court, in which, the Income Tax department had tried to interject stacking its claim to a sum of ₹ 2.31 crores deposited by M/s. N.K.Industries Ltd. pursuant to the order of the learned Single Judge to verify its bona fides. This was on the basis that M/s. Banpal Oil Chem Pvt. Ltd was a tax defaulter and any amount payable to M/s. Banpal Oil Chem Pvt. Ltd could be claimed directly under section 226(3) of the Income Tax Act. The learned Single Judge, however .....

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show that though the tax arrears of M/s. Banpal Oil Chem Pvt. Ltd are much higher, this figure of ₹ 1.13 crores is arrived at by deducting ₹ 10.75 crores already paid by M/s. N.K.Industries Ltd. to M/s. Banpal Oil Chem Pvt. Ltd. out of the original sale consideration of ₹ 11.11 crores mentioned in the agreement to sale and does not take into consideration the revised terms contained in the later agreement dated 09.04.2015. 6. Be that as it may, the case of the department is th .....

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s of M/s. Banpal Oil Chem Pvt. Ltd subsequently, due to multiple disputes, the agreement was not acted upon. In the latest agreement dated 23.07.2015, it is recorded as under: Its in now agreed between the parties as under: 1. Party of part 2 acknowledges and confirms having received a sum of ₹ 896.00 lacs (Rs. Eight Crores and Sixty Nine Lacs only) by cheque No. 576707 dated 30/08/2011 from party of part 1 and the same is outstanding as an advance against sale of assets. 2. Party of part .....

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assets. Annexure A to this agreement provides details of sums received by party of part 2 from party of part 1 and/or its associates. 4. Party of part 2 agreed to repay/refund the above mentioned amounts of ₹ 10,75,78,636.00 (Rs. Ten Crores seventy five lacs seventy eight thousand six hundred thirty six only) party of part 1 and its associate company namely N K Proteins Ltd out of cash accrual(S) generated from business in future. 5. Party of part 1 agreed to waive its rights under agreem .....

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