Judicial Pronouncement

  • Income Tax
  • Indirect Tax
  • Corporate Law
  • Other

Nov 22, 2023

  In the instant case, the Assessee along with Shri Aditya Pratap Singh, respectively in the ratio of 33:67 % purchased a property from M/s Macrotech Construction for a consideration of R.6,18,13,080/-. Subsequently, the Assessee jointly sold the said property on 30/04/2013 for a consideration of Rs. 8,17,37,500/- and claimed long term capital loss of Rs.61,57,119/- (33% of total long term capital gain) in the computation of income. The Assessing Officer, in order to verify the long term capital loss as computed by the Assessee, issued a notice under section 133(6) of the Act on 07/09/2016 to the builder, M/s Macrotech Pvt Ltd having address at Lodha Exelus, Appollo Mills Compound, NM Joshi Marg, Mahalaxmi, Mumbai-400011 whereby the said company was asked to furnish the details of possession of the property under consideration.  In response, said company, vide letter dated 19/09/2016 submitted that the above flat/property was handed over to the assessed and Shri Aditya Pratap Singh only on 29/04/2011 and also enclosed a copy of the possession with acknowledgement letter dated 29th April, 2011 received from the Assessee and Shri Aditya Pratap Singh along with its reply. Therefore the AO by considering the fact that possession of the property was taken by the Assessee and / or handing over by the builder only on 29th April, 2011 and the Assessee sold the property on 30/04/2013, show caused the Assessee as to why the long term capital loss cannot be disallowed and the claim should be treated as short term capital gain. Heard the Parties and perused the material available on record. The Assessee vide agreement for sale dated 06/10/2009 purchased the property under consideration of Rs.6,18,13,080/- in 17 installments as it appears from page 7 of the said sale deed and consequently, paid the amount of Rs. 2,68,13,680/- as advance on the date of execution of the agreement for sale dated 06/10/2009 itself and subsequently paid the remaining amount which is not in controversy.  The only controversy in this case involve is “whether the date of possession or the date of sale of property and / or allotment of property is required to be considered” for claiming the capital gain. On the aforesaid analyzations and the dictum laid down by the Hon’ble High Courts, the determination by the Authorities below “that the Assessee had received the possession on 29/04/2011 and sold the property on 30/04/2013, therefore, the holding period of the property was less than 36 month and, therefore, the property is required to be considered as short term capital asset and after transfer, the gain is treated as short term capital gain,” therefore is un-sustainable, hence the orders passed by the Authorities below are set aside. Resultantly, the AO is accordingly directed to recompute the capital gain of the Assessee by considering the date of allotment. In the result, the Assessee’s appeal is allowed.  

Nov 15, 2023

  Facts include that the assessee owned three properties one being Flat No.1, Maha Maya Enclave, Plot No.53, VIP Area, IRC Village, Bhubaneswar, second being subplot No.36A, Plot No.61/1761/1836, Bharatpur, Bhubaneswar and third being Sub-plot No.36B, Plot No.61/1761/1836, Bharatpur, Bhubaneswar. The assessee also owns another plot of land namely Plot No.GA-722, PO: Ghatikia, Bhubaneswar. It was the submission that the assessee had sold sub-plot No.36A to one Mr Maqsood Ahmed Khan, which had given rise to capital gains tax. The sale had been done on 27.12.2014. The sub-plot No.36B which consisted of a house property was on rent to the assessee’s sister namely, Stm. Amitarani Giri. She had been staying on the said house from April, 2014 and this has also been recognized by the Pr. CIT in his order passed u/s.263 on 24.3.2020. The assessee had gifted the said property to his sister Smt. Amitarani Giri on 27.12.2014. The assessee had utilized the sale proceeds on the sale of the vacant plot No.36A for the construction of a new residential building at Plot No.GA-722, PO: Ghatikia, Bhubaneswar. It was the submission that the Assessing Officer on the ground that the assessee owned more than one residential house as on the date of sale, held that the assessee was not entitled to claim exemption u/s.54F. It was the submission that date 27.12.2014 is the specified date on which the transfer had taken place. At the beginning of 27.12.2014, the assessee, in fact, had two residential houses and two vacant plots. At the end of the specified date being 27.12.2014, the assessee remained with only one residential house and one vacant plot. It was the submission that consequently, as on the date of transfer, the assessee did not own more than one residential house, the proviso to section 54F did not apply.NCLAT stated that they have considered the rival submissions. A perusal of the facts in the present case clearly show that the basic issue to be decided is whether as on 27.12.2014, the assessee own more than one residential house or not?. It is an admitted fact that the assessee has gifted residential house being Plot No.36B, Bharatpur, Bhubaneswar to his sister, Smt. Amitarani Giri, who was already in possession as a tenant of the property. It is also an admitted fact that the assessee was residing at Flat No.1, Maha Maya Enclave, which is a self occupied property. At the beginning of the specified date being 27.12.2014, admittedly, the assessee did hold two residential properties. However, at the end of the specified date, the assessee own only one residential house. A perusal of the proviso to section 54F shows that the wording used is “ on the date of transfer of the original asset”. Though ld AR has been vehement in his argument that the meaning of the term “on the date of transfer” should be considered as the end of the specified date of transfer, I am unable to accede to the arguments because the date of transfer starts at 00 hours and ends at 23.59 hours. On the date means any time during the date and at the beginning of the date of intended transfer of the original asset, the assessee did own more than one residential house. This being so, I am of the view that the Assessing Officer and ld CIT(A) is right in denying the assessee the benefit of exemption u/s. 54F of the Act. It must be mentioned here that the interpretation brought out by ld AR itself lead to substantial question of law as to what exactly is the interpretation of the term “ on the date of transfer”. The interpretation given by ld AR though plausible is not acceptable to this Tribunal. In the result, appeal of the assessee stands dismissed.  

Nov 07, 2023

The only issue raised by the assessee in the various grounds of appeal is against invalid exercise of jurisdiction u/s. 263 of the Act by Ld. Pr. CIT with the consequence that order passed u/s. 263 of the Act is also invalid.  Facts in brief are that assessee filed its return of income for the relevant assessment year on 11.09.2010 declaring total loss of Rs.6,04,635/-. The return was originally processed u/s. 143(1) of the Act. Thereafter, the case of the assessee was reopened u/s. 147 of the Act on the basis of information received from Investigation Wing that assessee is beneficiary of Rs.4,95,00,000/- received from four entities and accordingly, the income has escaped assessment. The assessment was framed u/s. 144/147 of the Act vide order dated 27.12.2017 assessing the total income at nil. The AO examined the issue and came to the conclusion that the information pertained to FY 2010-11 relevant to AY 2011-12 and not to the instant assessment for AY 2010-11 and, therefore, no disallowance was made. Thereafter, the AO reopened the assessment for AY 2011-12 u/s. 147 of the Act by issuing notice u/s. 148 of the Act dated 29.03.2018 and after looking into the matter, AO noted that transactions were duly recorded in the books of account and there was no undisclosed income and accordingly assessed them at nilvide order dated 20.11.2018. Thereafter, the assessee received a notice u/s. 154 of the Act dated 14.01.2019 in which the AO pointed out the mistake in applying provisions of section 68 of the Act which was replied on 18.03.2019 in which it was pointed out that the information did not pertain to AY 2010-11 but to AY 11-12. It was also stated before the AO that AY 2011-12 was reopened and after necessary verification, the assessment was framed u/s. 143(3)/147 of the Act for AY 2011-12 making no addition by the AO as these were duly found recorded in the books of accounts. Besides, it was pointed out that impugned issue did not qualify as mistake apparent from record and, therefore, jurisdiction sought to be invoked u/s. 154 of the Act was invalid and unreasonable. The AO did not pass any order u/s. 154 but a proposal was sent to the Ld. Pr. CIT for invoking the revisionary jurisdiction u/s. 263 of the Act on 03.04.2019. In the meanwhile, the assessee was converted into LLP w.e.f. 13.04.2015 and the same has been intimated to the AO on 12.02.2018 by registered post and copy of which is placed as annexure in the paper book. Consequently, M/s. Madhuban Dealers Pvt. Ltd. stood wound up and dissolved with a new entity coming into existence as M/s. Madhuban LLP. Thereafter, the ld. Pr. CIT issued notice u/s. 263 of the Act on 07.01.2020 in the name of M/s. Dadhuban Dealer Pvt. Ltd. a non-existent entity by observing that assessment framed u/s. 144/147 of the Act dated 27.12.2017 is erroneous and prejudicial to the interest of revenue as the AO has failed to make proper enquiries/verification in terms of clause (a) to explanation (2) of section 263 of the Act in respect of receipt of money amounting to Rs.4,95,00,000/- from four entities.The assessee sought an adjournment to reply the said show cause notice,however, the Ld. Pr. CIT proceeded with the framing of revisionary order u/s. 263 of the Act dated 13.03.2020 as ex parte order in the name of Madhuban Dealers Pvt. Ltd., a non-existent entity. Aggrieved assessee, filed an appeal before the Hon’ble ITAT, Kolkata in ITA No. 393/Kol/2020 and the coordinate Bench has set aside the matter back to the file of Ld. Pr CIT vide order dated 25.08.2021 to consider the matter afresh. ITAT stated that considering the facts and circumstances as stated above and the decision of the Hon’ble Courts as discussed above, we are inclined to hold that the revisionary jurisdiction as well as the order passed under section 263 is invalid and accordingly quashed. In the result, the appeal of assessee allowed.

Nov 06, 2023

  ITAT stated that the compliance is not in accordance with the Circular. The Circular mandates that in the body of the order / communication, it has to be stated that the communication is issued manually without a DIN and the date of obtaining of the written approval of Chief Commissioner / Director General of Income-Tax for issue of manual communication. Furthermore, a reading of the aforesaid circular makes it clear that the object behind bringing the circular is for creating an audit trail. In paragraph 2, it has been very clearly mentioned that no communication shall be issued by any income-tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1st day of October, 2019, unless a computer generated DIN has been allotted and is duly quoted in the body of such communication. Paragraph 3 of the circular carves out certain exceptions to paragraph 2 by providing that under certain exceptional circumstances, enumerated in clause (i) to (v) of paragraph 3, the communication may be issued manually but only after recording reasons in writing not only in the file and with prior written approval of the Chief Commissioner/Director General of Income-tax, but, the communication issued manually in such circumstances must also state the reasons why communication is issued manually without a DIN and must also mention the date and number of written approval of the Chief Commissioner/Director General of Income-tax for issuing manual communication. In fact, in paragraph 3 of the aforesaid circular, the format for recording such reasons has been specified. Paragraph 4 of the circular makes it clear that any communication issued which, is not in conformity with paragraph 2 and paragraph 3 of the circular, shall be treated as invalid and shall be deemed to have never been issued. It is fairly well settled, a circular issued u/s. 119 of the Act has statutory force and binding on subordinate authorities working under the Central Board of Direct Taxes. A perusal of the DRP order shows that it is clear in the body of DRP order, no DIN number is mentioned nor there is any reason of not mentioning the DIN number in order of the DRP. Is such a situation, the DRP order will lose its validity. Subsequent separate communication of DIN is a superfluous exercise. Hence we hold that the impugned DRP order is invalid and shall be deemed to have never been passed. Accordingly, we quash the impugned DRP/AO order. Since, we have allowed the legal/additional ground raised by the assessee, rest of the grounds have been rendered academic and do not require adjudication.  In the result, all the appeals filed by the assessee are allowed as indicated above.  

Nov 03, 2023

  Briefly, the facts of the case are that the appellant is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing and sale of Yarn and Fabrics. The Return of Income for the assessment year 2013-14 was filed on 28.09.2013 declaring total income of Rs.23,44,99,020/-. The said return of income was revised on 30.03.2015 at total income of Rs.23,49,01,090/-. Against the said return of income, the assessment was completed by the Assessing Officer vide order dated 09.03.2016 passed u/s 143(3) of the Income Tax Act, 1961 (‘the Act’) at total income of Rs.27,09,46,220/-. While doing so, the Assessing Officer made disallowance of expenditure of Rs.7,26,175/- incurred on the landscaping and beautification of main gate by holding it to be a capital expenditure. However, the Assessing Officer allowed the depreciation @ 5% and the balance expenditure of Rs.6,89,867/- was disallowed by the Assessing Officer. The Assessing Officer also made disallowance of additional depreciation of Rs.3,53,55,262/-, which was disallowed in the assessment year 2012-13. The said additional depreciation was not claimed in the immediately preceding year, as the assets were used for a period of less than 180 days. This claim as additional depreciation was allowed in appeal by the ld. CIT(A). Therefore, we are not concerned with the addition on account of disallowance of additional depreciation. We are only concerned with the issue of disallowance of expenditure incurred on landscaping and beautification of main gate. It is stated that the assessee had claimed the expenditure incurred on landscaping and beautification of main gate of the factory of Rs.7,26,175/- as revenue expenditure. The nature of the expenditure was explained by the appellant vide his letter dated 16.12.2015 before the Assessing Officer, which is set out in para 3 of the assessment order. On perusal of the said explanation of the assessee, it would be reveal that the assessee had incurred the expenditure of Rs.7,26,175/- on landscaping and beautification of main gate of the factory of the appellant company. It was further explained that this landscaping was necessitated because of the fact that the existing entrance gate of the factory was very low level as result of increase in the height of National Highway No.7 (NH No.7) by 8 ft. The existing entrance gate of the factory is at very low level and lost the visibility, as it was enveloped by decorative walls. In order to increase the height of the gate as well as improve the visibility of the entrance gate of the factory, the appellant company spent an amount of Rs.7,26,175/-. However, the Assessing Officer held that the expenditure was incurred was of enduring nature and, therefore, it is a capital expenditure. Even on appeal before the ld. CIT(A), the claim of the assessee was denied.  Being aggrieved, the appellant is in appeal before us in the present appeal. Second appeal includes that the appellant is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing Yarn. The Return of Income for the assessment year 2014-15 was filed on 29.11.2014 declaring total income of Rs.44,77,55,370/-. The said return of income was revised on 22.02.2016 at total income of Rs.34,36,33,490/-. Against the said return of income, the assessment was completed by the Assessing Officer vide order dated 30.12.2016 passed u/s 143(3) of the Act at total income of Rs.49,01,58,590/-. While doing so, the Assessing Officer made several disallowances, inter alia, includes the disallowance of Rs.5,75,943/- being expenditure incurred on repairs and maintenance of the access road between PC turning to Weaving Auto drawing of WBM road. According to the Assessing Officer, the expenditure given enduring benefit and, therefore, the same is capital in nature. Accordingly, the Assessing Officer held that the expenditure is capital in nature, allowed the depreciation @ 5%. ITAT stated that the issue that arises for consideration in the present appeal is whether the expenditure of Rs.5,47,146/- incurred by the appellant for improving the existing road can be considered as revenue expenditure as claimed by the appellant. The submission of the appellant is that the expenditure was incurred to cover by cement and carpet tremix process. This was necessary for smooth carrying on business of the assessee and maintain the quality to ensure the dust free, therefore, the ratio of the decision of the Hon’ble Supreme Court in the case of Empire Jute Co. Ltd. (supra) is squarely applicable to the facts of the present case, as the expenditure was incurred to bring to existence of new road. Therefore, we direct the Assessing Officer to allow the same as revenue expenditure. Accordingly, the grounds of appeal filed by the assessee stands allowed.  

Nov 02, 2023

  Brief facts of the case are that assessee is a Multi-state Cooperative Credit Society, duly registered with Ministry of Agriculture, Government of India. Its membership is restricted to serving employees of the Central Bank of India. The principal business of the assessee is garnering deposits from membershareholders under various deposits and savings mobilisation schemes and lending the same to its members.  Assessee filed its return of income on 28.03.2017 reporting total income at nil. In the return, assessee had claimed deduction of its entire profit of Rs.38,61,336/- u/s. 80P(2)(a)(i) of the Act. From the examination of accounts of the assessee, Ld. AO had noted that assessee derived income mainly as interest on loan given to the members under various schemes and interest from fixed deposits. He also noted that assessee garnered deposits from its member under two schemes i.e. Thirft Fund and Guarantee Fund. He noted that on the investments side, assessee primarily invests in lending to its members. There are certain other loans like house building loan etc. which are also given to its employees. Assessee also invests in fixed deposits with banks. Assessee is required under the Co-operative Societies Act to appropriate certain amount of profit as reserve like Reserve Fund, Bad Debt Fund and Co-operative Education Fund. He also noted that assessee is running holiday homes and that income from holiday homes is Rs.3,05,700/-. ITAT stated that Considering the facts of the present case and the submissions made before us, we find force in the arguments of the Ld. Counsel for the assessee. We note that assessee is engaged in the business of providing credit facilities to its members for which it accepts deposits from and lend the same to its members. While accepting deposits, assessee promises to pay interest at a specified rate. When money is lent to the members, interest is recovered which is also at a specified rate. Difference between the two rates is the income of the assessee. However, there are periods when entire deposit received from the members cannot be lent owing to demand for loan not there from the members. In such a situation, whether the money is lent or not, assessee continues to be liable for payment of interest to its members who have made deposit with it. To cover up this liability for payment of interest, these funds are invested with banks in fixed deposit/term deposit which earned certain interest income to be set off against the interest payable to the member/depositors. Parking of funds by the assessee with banks in the form of fixed deposits to earn interest income is part and parcel of the business of providing credit facilities to its members. Assessee has received the deposits from its members only which are subjected to interest charge. The assessee is entitled for deduction of interest income earned from deposits made by it with banks which has arisen out of deposits received from its members pursuant to conduct of business of providing credit facilities to its members. Accordingly, deduction of Rs.30,93,854/- towards interest income earned from deposits with the banks is allowed for deduction u/s. 80P of the Act. Ground taken by the assessee in this respect is thus partly allowed. Since the portion of claim in respect of income from holiday home has not been pressed is, therefore, upheld to that extent. In the result, appeal of the assessee is partly allowed  

Nov 30, 2023

  In the present appeal by the impugned order the Cenvat credit was denied to the appellant on the following grounds:- (i) Rs. 77,74,439/- the Cenvat credit was taken on the input service after long span of 1 to 4 years. Although the time limit for taking the Cenvat credit on input service has not been prescribed, the normal period of time for demanding duty or service tax is 1 year as per Section 11A and therefore, the appellant should have taken the Cenvat credit within one year and not after longer period. (ii)Rs. 2,21,112/- the credit of security service was denied as the same was used for the unit as well as the residential premises of the director and branch office. (iii) Rs. 75,762/- the invoices do not pertain to the appellant. (iv) Rs. 1,82,602/- the invoices do not contain the service tax registration No. of the supplier of input services. We have carefully considered the submission made by both sides and perused the record. We find that the reason given for denial of cenvat credit of Rs.77,74,439/- by the Adjudicating Authority that since one year period is provided under Section 11A for demanding of duty the same shall apply for availment of Cenvat credit also. This reason given by the Adjudicating Authority, in our considered view is absolutely absurd and not relevant. The Cenvat Credit Rules, 2004 is independent in itself and in dealing with the Cenvat credit matters, finding given is irrelevant and cannot be imported from the other Rules or Act. Section 11A is strictly for the purpose of issuing show cause notice for demanding of duty even for demanding wrongly availed Cenvat credit, but for the purpose of availment of Cenvat credit, Cenvat Credit Rules, 2004 is applicable. During the relevant period no time limit was prescribed for availment of Cenvat credit in respect of input, input service or capital goods. Therefore, the import of Section 11A to say that 1 year period provided in Section 11A shall apply in the case of availment of Cenvat credit is absolutely illegal, incorrect and imaginary. As regards delay at the most genuineness of the receipt of input service, Payment thereof to the service provider, accounting the same in the appellant’s books of account can be verified. In the present case appellant have provided Chartered Accountant certificate, books of account showing. payment of service invoices to the supplier of service, this abundantly makes it clear that there is no dispute that the appellant have indeed received the input service and payment thereof was made to the service provider. Therefore, in our considered view Cenvat credit cannot be denied merely because the same was not availed within period of 1 year which is nowhere prescribed in Cenvat credit Rules, 2004. As regards the denial of credit of Rs. 2,21,112/-, the same was denied in respect of security service on the ground that the security service was used for the residential premises of the Director and branch office. We find that very small portion of the service was used in respect of the residential premises of the Director. However, remaining majority of portion of service was used in relation to the business activity by the appellant. Therefore, only the Cenvat credit attributed to the input security service related to the residential premises of Director shall not be available. However, the appellant have reversed the Cenvat credit of Rs. 8189/-. In respect of security service related residential premises of the Director said reversal is upheld and maintained. However, the remaining amount of Cenvat credit of security service is admissible to the appellant. In the impugned order the credit of Rs. 75,762/- was denied on the allegation that the invoices do not pertain to the appellant. We find that though the invoices copy is not available, however, there is no case of the department that the input service related to this credit was not received by the appellant and used for their overall business operation. Impugned order has also denied Cenvat credit of 1,82,602/-. Only on the ground that invoices do not contain the service tax registration of the supplier of input services. We find that except this small lapse there is no dispute that the appellant have received the invoices, services and the payment of such invoices to the supplier of input service. Therefore, merely because registration no. is not mentioned credit cannot be denied. From the above consistent view taken by the Tribunal, it is settled that merely because service tax registration was not mentioned on the invoices credit cannot be denied. The ratio of the judgments are directly applicable in the present case particularly when there is no dispute about receipt of service and use thereof, and the payment of service bills to service providers. Therefore, in this fact the appellant are eligible for Cenvat credit on the invoices which are not bearing the registration number. As per the above discussion and finding appellant are eligible for Cenvat credit, on all the counts as discussed above.  

Nov 30, 2023

  The brief facts are that an intelligence was received that the appellant was importing "Canned Pineapple Slices" from Philippines & Thailand and claiming exemption from Basic Customs Duty available to imports from ASEAN countries in terms of Customs Notification No. 46/2011-Cus dated 01.06.2011, as amended. However, it was alleged that the said 'Canned Pineapple Slices’ are classifiable under Customs Tariff Heading No. 0804 3000 and consequently the benefits of Exemption Notification No. 46/2011- Cus dated 01.06.2011, as amended, are not available. Thereafter, the premises of the appellant was searched on 17.03.2021, in the presence of independent witnesses and Mr. Harith Budhraja, Director of the appellant. The proceedings conducted were recorded in a Panchnama dated 17.03.2021. Sh. Harith Budhraja’s statement was recorded on 17.03.2021, wherein he inter-alia stated that they trade and manufacture processed fruits, vegetables and food additives etc. He stated that they had been importing pineapple for over 2 years and he also submitted the import data (i.e. Invoices, packing list, Bill of Entry) for last 02 years. He also explained the process of canning such sliced pineapples, and he named the ingredients of 'Canned Pineapple Slices', in descending (maximum to minimum) order as under: (a) Pineapple Slices (b) Water (c) Sugar and (d) Acidity Regulator (INS 330) (Citric acid). He also explained the manufacturing process of the 'Canned Pineapple Slices'. He submitted that the fresh fruits (Pineapple) are received, graded, washed, peeled, cut, core, sliced and then put in sterile cans (sterilized by passing under steam); boiling Hot Sugar syrup is added to balance the natural sugar content of the fruit and prevent it from draining out; sugar is added to maintain taste and palatability of the fruit and it is not a preservative; the Hot syrup (water+ sugar pre mixed) is heated till boiling point to kill any ambient bacteria that may be present and to create vacuum in the cans thus completing the preservation process due to the isolation from atmospheric contact and vacuum. Thereafter, such cans are cooled and released to market. He also stated that there is no basic difference between fresh pineapple and canned pineapple slice is pineapple itself. He also stated that the recommended range of temperature for storage of the product is 10 Degrees Celsius to 40 Degrees Celsius at max, as long as the Hermetical seal is intact. However, as soon as the Can is opened, the shelf life of the product is only as good as of pineapple fruit and needs to be refrigerated in glass or SS container and the same is recommended to be consumed within 24 to 48 hours after opening of can. He also added that the Canned Pineapple slices is not frozen product and does not require any freezing during storage based in the investigations the department issued a show cause notice and thereafter the impugned order was passed. CESTAT stated that in the instant case, the classification of the canned pineapple slices would have to be decided as per the HSN explanatory notes and would therefore be appropriately classifiable under CTH 0804 only. We also note that in the impugned order, it is recorded that the appellant had themselves quoted that it was their CHA who filed their Bills of Entry under the wrong CTH 20082000 without taking instructions from the regarding the correct classification, which would be CTH 08119010. As per the discussions above, we have already opined that the appropriate classification would have to be arrived at by going through the tariff headings, the chapter notes, the HSN explanatory notes therein. In view of the same, we hold that the most appropriate classification of canned pineapple slices would have to be CTH 0804 only. As noted supra, we find that the appellant in his statement has accepted that they have wrongly classified their product under CTH 0811 by suppressing the non-frozen character of the impugned goods, in order to avail the benefit of the Notification no 46/2011 – Cus dated 01.06.2011. We note that the Supreme Court in their decision in the case of Naresh J. Sukhawani v. Union of India, 1996 (83) E.L.T. 258 (S.C.) held that the statement made before the customs officials is not a statement recorded under Section 161 of the Cr.P.C. Therefore, such statement is a material piece of evidence collected by customs officers under Section 108 of the Customs Act. The material incriminates the petitioner in the contravention of the provisions of the Customs Act. Such material can certainly be used to connect the petitioner to the contravention. Therefore, we do not find any infirmity in the impugned order which has relied on the statement of the appellant.  It has been submitted that there is a ruling dated 17.09.2018 by the AAAR in their own group firm M/s Bharat Agro wherein it was held that canned pineapple slices are classifiable under CTH 0811. Thereafter, the Deputy Commissioner passed an order of reassessment on 31.01.2019 wherein the canned pineapple slices were reclassified from CTH 20082000 to CTH 0811. We find merit  in the contention that the Department themselves have classified the said goods under different headings. In view of the prevailing circumstances as elaborated above, we hold that the extended period cannot be invoked in the instant case.  Accordingly, we hold that the classification of the canned pineapple slices would be CTH 0804. However, the demand for differential duty is limited to the normal period only. The interest would accordingly be reduced proportionately. The penalty under section 114A is set aside. The impugned order is modified to the extent indicated above and the appeal is partly allowed.  

Nov 23, 2023

  The appellant M/s JH-Welltec Machines (India) P. Ltd., inter alia, is engaged in the manufacture of Plastic Injection Moulded Machines (PIMM) and is duly registered with the Central Excise department, having jurisdiction over the factory of such manufacture of the excisable goods. PIMM is a machine used for manufacturing wide variety of plastic products like caps of plastic bottles, automobile parts etc., by injection moulding process. For the purpose of manufacture/assembly of the PIMM, the appellant had imported various parts from M/s Welltec Machinery Ltd., China. The appellant and the overseas supplier are related persons in terms of Rule 2(2) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and accordingly, the appellant got itself registered with the Special Valuation Branch (SVB), New Custom House, Mumbai for the purpose of valuation of the imported equipment/parts. The appellant had also claimed that it had domestically procured certain parts and equipment for manufacture of the complete PIMM and that it had discharged the Central Excise duty liability on manufacture of such goods.  In the matter of import of all kinds of plastic processing or injection moulding machines, an investigation was conducted by the Designated Authority (DA) in the Department of Commerce. In the preliminary findings, vide Notification No. 14/12/2008-DGAD, dated 10.02.2009, the DA had concluded that the subject goods had entered the Indian market from the subject country at the prices less than the normal value in the domestic market of the exporting country; that the dumping margins of the subject goods imported from the subject country were substantial and above de minimis; and that the domestic industry had suffered material injury and the injury had been caused to the domestic industry, both by volume and price effect of dumped imports of the subject goods, originating in or exported from the subject country. On the said findings, the DA had recommended for imposition of provisional anti-dumping duty on all imports of the subject goods, originating in or exported from China. Subsequently, based on detailed investigation, the DA vide Notification dated 31.12.2009, issued from file F. No. 14/12/2008-DGAD had recorded the final findings, in confirming the preliminary findings recorded in the Notification No. 14/12/2008- DGAD, dated 10.02.2009. Pursuant to such final findings, the Central Government vide Notification No. 39/2010-Cus. dated 23.03.2010 had imposed the anti-dumping duty on ‘plastic processing or injection moulding machines’, originating in, or exported from China PR. The levy of anti-dumping duty as per the said notification was for a period of five years from the date of imposition of the provisional anti-dumping duty i.e., 12.05.2009. 1.3 In this case, the officers of Central Intelligence Unit (CIU), in the Customs department had conducted an inquiry with regard to horizonal plastic injection moulding machines imported by the appellant. They had alleged that the appellant had imported such goods from M/s Welltec Machinery Ltd., China in the guise of “parts and components” with the sole intention to evade anti-dumping duty leviable as per notification dated 12.05.2009, as amended by notification dated 23.10.2010. The consignment covered under Bill of Entry No. 8161563 dated 09.10.2012 were seized by officers of CIU on 30.11.2012. Subsequently, during the search operation at the appellant’s factory, the said officers found that in respect of past consignments, the appellant had evaded payment of anti-dumping duty. During the course of investigation, the Department recorded statements from various persons with regard to the issue of importation of the subject goods. On the basis of investigation, the department had concluded that the appellant in connivance with its related foreign supplier had adopted various modus operandi and imported assemblies/sub-assemblies of PIMM of capacity between 90 Ton to 750 Ton in SKD/CKD condition by willfully mis-declaring and misclassifying the imported goods as parts, components and spare parts with the intention of evading ADD amounting to Rs.19,68,98,069/-. It has further been observed by the department that the appellant had planned the evasion meticulously in collusion with other directors of the importing firm and representative of the related foreign supplier to suppress the actual description of the goods, by mis-declaring them as parts and components to import all essential assemblies/sub-assemblies of PIMM manufactured by the related foreign supplier in CKD/SKD condition to evade payment of ADD. On the basis of investigation, the department had proposed for rejection of classification of imported parts of PIMM under CTI 8477 9000 /7318 1100 and classified the same under CTI 8477 1000 for the purpose of confirming the demand of ADD under Section 28(4) of the Customs Act, 1962. For this purpose, the department had applied the provisions of Rule 2(a) of the General Rules for the Interpretation (GIR) to the First Schedule to Import Tariff to hold that items imported should be classified as complete PIMM. Further, the department had also entertained the belief that the appellants herein, are exposed to the penal consequences provided under the statute.  On the above backdrop of the issue, the department had issued the show cause notice dated 28.07.2015 to the appellants, calling upon them to show cause as to why the subject goods seized under the provisions of Section 110 , and subsequently released provisionally, shall not be confiscated under Section 111(d) and 111(m) ; the declared classification of the imported goods under CTI 8477 9000 / 7318 1100 shall not be rejected and to be classified under CTI 8477 1000 for the purpose of assessment and levy of ADD amounting to Rs.19,68,98,069/- as per notification dated 12.04.2009 and 23.03.2010; interest on the ADD payable under the disputed Bills of Entry shall not be charged under Section 28AA; and penalty shall not be imposed on the appellants under Section 112(a) and 114A ibid. CESTAT stated that On the basis of the analysis made herein above, we conclude that the appellants herein had not imported the complete PIMM in order to fall within the purview of the notification(s) referred supra for levy of ADD. In this case, admittedly since the PIMM, complete in all respects was manufactured in India by using the domestically procured goods also, such imported equipment, in our considered view, should not be subjected to levy of ADD. Therefore, the adjudged demands confirmed in the impugned order cannot be sustained for judicial scrutiny. Further, it is not the case of Revenue that the appellants did not pay central excise duty on the PIMM manufactured by them in their factory located in Ahmedabad. Since, manufacturing activity undertaken by the appellants and payment of Central Excise duty on such activity was acknowledged and not disputed by the jurisdictional Central Excise authorities, the same cannot be questioned by the Customs department without any clinching evidence that such machine in question was imported into India as such or in un-assembled condition, and no further activities were undertaken thereto to complete the process of manufacture and installation etc. In view of the foregoing discussions and analysis, we do not find any merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellants. Therefore, by setting aside the impugned order, the appeals (excepting Appeal No. C/85991/2017) are allowed in favour of the appellants. Appeal No. C/85991/2017 abates in view of the discussions made in paragraph No.5 above.  

Nov 22, 2023

  The issue before the Bench in the present appeal is regarding the sanctioned refund credited to the Consumer Welfare Fund, which arises out of the payment of CENVAT duty on compounding basis on higher side than applicable rates and the issue relating to the classification and applicable rates. The facts of the case in brief are that the Appellant is the manufacturer of Branded Chewing Tobacco, meriting Classification under 2403 of the erstwhile Central Excise Tariff and the period of dispute is from June 2015 to February 2016, during which the Appellant was discharging levy under erstwhile compounded levy scheme. The scheme was captured under erstwhile Section 3A of the Central Excise Act, 1944, which had carved out Power of Central Government to charge Excise Duty on the basis of capacity of production in respect of notified goods. Under the scheme of Act, it was the onerous duty of the Appellant to file a declaration with regard to the parameters as provided in the rules and the notification carved out for determination of Annual Capacity of production of the factory by the Jurisdictional Assistant Commissioner, where such goods were produced, in accordance to the rates specified in the Chewing Tobacco Capacity Determination Rules. The Annual Capacity of production was fixed on the basis of factors like the product, the speed of the machines, the retail sale prices, and whether or not production activity was in process or closed. It was mandatory levy for the Appellant to discharge the levy of Excise Duty on compounding basis and the Appellant could not have taken as a component of cost for fixing a price as mentioned in the impugned decision at supply place. There was no cause for the Determination of any actual production and clearance from the factory. There was a separate scheme under erstwhile Rule 10 of the Chewing Tobacco Rules, which provided for the Abetment of duty for the complete closure of the factory, but that was claimed only after the payment of Duty by 5th day of the month in advance under Rule 9 of the Chewing Tobacco Rules, ibid, no law relating to post removal payment. That scheme of the Rules under Rule 6 carved out a Declaration to be filed by the Appellant, declaring their parameters along with the description and classification of the products, giving a horizon for the fixation of Annual Capacity of production by the Jurisdictional Officer and contra to the declaration filed under the head of Branded Chewing Tobacco provisional annual capacity of the production was determined by the Revenue, classifying the product as Jarda Scented Tobacco, which was the initial quarrel of the issue. CESTAT stated that there is no set mechanism or opportunity available to the manufacturers working under compounded levy scheme in terms of Section 3A and the Assessee necessarily have to pay the prescribed duty in advance, irrespective of the number of days the machines are operative and irrespective of the quantity of the goods manufactured. Under the spirit of law of Compounded Levy Scheme, the Appellants had no option but to bear the entire incidence of the duty, upon themselves and as the consequence the probability of their venture depends entirely on the functional efficiency of the machine and the number of machine installed in the factory, and virtually has no relation to the per unit price of the product. Therefore, the principle of the unjust enrichment, which is ordinarily applicable only on the goods manufactured and removed under the scheme of levy and more appropriately under Section 3 of the Act, the said principle cannot by any logically and economical be justifiable as legally tenable principle be extended to the manufactures working under compounded levy scheme under Section 3A. In view of the above discussion, it is our considered view that the impugned order cannot be sustained and is accordingly set aside. The doctrine of unjust enrichment is not applicable to the facts and circumstances of the present case and accordingly we direct that the refund of Rs.6,95,52,000/- appropriated in favour of the ‘Consumer Welfare Fund’ be credited to the account of the Appellant. Accordingly the appeal filed by the Appellant is allowed.  

Nov 21, 2023

Briefly stated facts of the case are that the Appellants are manufacturers of Cosmetics falling under Chapter 33 of the Central Excise Tariff, 1985. The Appellant has been availing the benefit of Notification 32/99-CE dated 08.07.1999. On 08.07.1999 NN-32/99-CE was brought into effect wherein excise duty exemption was granted to goods cleared from units located in Export Promotion Industrial Parks (EPIP) in the State of Assam. The exemption was available to new industrial units which commenced its commercial production on or after 24.12.1997. In terms of the notification, the exemption was given effect to by refunding the entire amount of excise duty paid by an assessee using its account current (PLA). In May – June 2001, The Appellants set up manufacturing plants at Bamunimaidan Industrial Estate, Guwahati and started their commercial production. During May 2001 to 22.12.2002 The entire excise duty paid by the Appellants during this period was paid using account current (PLA). The Appellants took refund of such excise duty paid through PLA which was also allowed by the proper officer as the same was in compliance of the notification. The CENVAT credit availed by the Appellants on inputs and capital goods during such period kept on accumulating. On, 23.12.2002,   NN-61/2002-CE was brought into effect amending NN-32/99-CE. By this amendment, a manufacturer was only allowed refund of excise duty paid through PLA after utilizing the entire amount of CENVAT credit availed of NN-42/2002-CE (NT) was also brought into effect amending Rule 3 of the CENVAT Credit Rules, 2002. By this amendment, it was stipulated that CENVAT credit of duty paid on inputs of the final product cleared after availing exemption under NN-32/99-CE shall be utilized only for payment of duty on final products cleared after availing exemption under the said notification. Thereafter, vide Circular No. 683/74/2002-CX it was clarified that amendments made by NN61/2002-CE and NN-42/2002-CE (NT) were done in order to prevent unintended benefit of higher amount of refund and also to stop diversion of credit. The Appellants accordingly amended their system and started utilizing CENVAT credit for payment of duty on clearance of its final products. The entire accumulated CENVAT credit as on 22.12.2002 was utilized by the Appellants during this period, leading to the scenario of Nil refund during the period February 2003 to May 2003.On  14.05.2003, Finance Act, 2003 was notified. Vide Section 153(1) of the Act the amendment made by NN-61/02-CE was given retrospective effect from the date of bringing into effect NN-32/99- CE that is w.e.f. 08.07.1999. Therefore, the restrictive condition brought into effect for the very first time vide NN-61/02-CE will deem to always have been in place right from the 08.07.1999. Again, vide Section 153(4) of the Act, the department was empowered to recover inter alia any amount of duty which has been refunded but which would not have been refunded, within 30 days, if the restrictive condition brought in by NN-61/2002-CE was applicable, right from 08.07.1999. Similarly, retrospective effect was given to amendments made in Rule 3 vide NN-42/2002- CE (NT) vide Section 152 of the Act. Thereafter, the Deputy Commissioner of Central Excise, Guwahati by exercising the power under Section 153(4) of the Finance Act, 2003 passed Orders dated 02.06.2003 and 03.09.2003 confirming the demand of Rs.22,01,868/- together with interest amounting to Rs.15,65,611/- for the period 24.02.2000 to 22.12.2002. On appeal the Ld. Commissioner (Appeals) passed the impugned order dated 13.02.2015, confirming the demands. Being aggrieved with the said order, the appellant is in appeal. CESTAT stated that we hold that the issue is no more res integra. Accordingly, we hold that the refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated. In view of this, we aside the impugned order and allow both the appeals with consequential relief, if any.

Nov 17, 2023

  Brief facts of the present cases are The Appellants are manufacturers of MS Ingots, MS Billets and other Re-rolled MS products falling under Chapter 72 of CETA, 1985. They have taken Cenvat Credit on various inputs, Capital goods and consumables for the manufacture of their end products as well as for manufacture of captively consumed capital goods like Furnace, Accessories, Cooling Bed, Conveyor System, Mill Accessories, EOT Crane Operating System, Pollution Control System and Electrical Installation System, etc. The Show Cause Notice dated 17/05/2010 was issued on the ground that they are not eligible to take the Cenvat Credit for various capitals goods and inputs. The demand was made by invoking the extended period provisions. The Appellants clarified the usage of items like TMT Bar, GS Sheets, MS Angles, MS Channels, Plates, Joists and HR Coil etc. in the manufacture of their Capital goods as well as for providing support mechanism for their capital goods. They also submitted the Chartered Engineer’s Certificate dated 20/05/2009 giving the details of such items used in various capital goods. The Appellant submitted that the Capital Goods, inputs and consumables were procured and utilized in the manufacture of capital goods, even during the period when the Appellant’s factory was previously owned by M/s. Dutta Iron & Steel Pvt. Ltd. They have submitted that since all the goods have been used within the factory premises and they have taken over the entire assets and liabilities of the earlier Company, they are eligible to take the Cenvat Credit. The Adjudicating Authority, after following due process has confirmed the demand. Being aggrieved, the Appellant is before the Tribunal. CESTAT held that In view of the above, we find that the Adjudicating Authority has confirmed the demands without any proper verification. Since the issue is squarely covered by the cited case law, we set aside the impugned OIO on merits. We are also in agreement with the Appellant that in the present case, no evidence has been brought in by the Revenue to fortify their allegation of suppression on the part of the Appellant. The Appellant has filed their Monthly Returns properly declaring the Cenvat taken by them on various counts. The Tribunals have been consistently holding that when the issue is that of interpretation, suppression clause cannot be invoked against the assesse. Therefore, the assesse could be having bonafide belief that they are eligible for Cenvat Credit. Accordingly, we hold that the demand in respect of the extended period is required to be set aside on account of time bar also. We do so. We allow the Appeal both on merits as well as on account of limitation also. The Appellant would be eligible for consequential relief, if any, as per law.  

Nov 30, 2023

  Facts being that the Learned Counsel for the Appellant Mr. Anirudh Krishnan submitted that the first Respondent / the Resolution Professional (RP) conducted the 9th CoC Meeting on 03/12/2022 when the CoC was requested to evaluate the Resolution Plans; that the 10th CoC Meeting was conducted on 08/12/2022 when a date was proposed to be fixed for voting on the Resolution Plans; that on 09/12/2022 a letter was issued by the Appellant to the State Bank of India (“SBI”) submitting an OTS Settlement Proposal; that on 12/12/2022 notice of the 11th CoC Meeting was issued by the RP stating that the Meeting was to be conducted on 14/12/2022 at 11.30 a.m. and that when the Appellant had logged in to the Meeting link on 14/12/2022 at 11.30 a.m., nobody had joined the Meeting. It is submitted that the RP conducted the 11th CoC Meeting at 3.00 p.m., wherein the CoC has requested the extension of voting timelines for a period of 30 days and it was resolved that an Application seeking extension of CIRP period would be filed by the RP and these facts were gathered by the Appellant only from the minutes of the 11th CoC Meeting along with the notice for 12th CoC Meeting dated 27/01/2023. It is argued by the Learned Counsel for the Appellant that they were not intimated by the Meeting scheduled at 3.00 p.m. While so, on 20/12/2022 SBI replied to the Appellant rejecting the OTS Proposal. On 03/01/2023, the CIRP period was extended for 45 days and on 13/01/2023, the RP received the relative voting sheet for the approval of the Resolution Plan. It is the case of the Appellant that it was only on receipt of Notice of the 12th CoC Meeting dated 27/01/2023 that the Appellant had become aware about the approval of the Resolution Plan and that the Letter of Intent (“LOI”) was issued to the Successful Resolution Applicant (“SRA”). It is argued by the Learned Counsel for the Appellant that it was only when the Notice for the 12th CoC Meeting was issued that the Appellant was informed about the approval of the Resolution Plan on 27/01/2023. Meanwhile on 30/01/2023, an e-mail was sent by the Appellant to SBI revising the OTS Proposal. IA No. 192/2023 was filed by the RP seeking approval of the Resolution Plan and the Appellant had sought time for filing an Impleading Application objecting to the approval of the Resolution Plan. It is submitted that the minutes of the 12th CoC Meeting on 01/01/2023 records the objections raised by the Appellant before the Adjudicating Authority. It is the main case of the Appellant that failure to provide an accurate Notice to the 11th CoC Meeting dated 14/12/2022 and the failure to provide Notice to e-voting of the Resolution Plan is in contravention of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016. It is the further case of the Appellant that being unaware of Regulations 21, 24 and 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016, the Appellant did not ask for the Resolution Plan during the CoC Meetings but has however, recorded its objections before the Adjudicating Authority and also specifically stated so in his affidavit. It is also argued that the doctrine of waiver does not arise as the Appellant got to know about the approval of the Resolution Plan only on 27/01/2023 and immediately thereafter, on 31/01/2023, the Appellant had recorded its Objections before the Adjudicating Authority. It is also submitted by the Learned Counsel for the SBI that the Appellant is a doctor by profession and a Director of multiple concerns occupying the position to Director in many Companies and was aware of the relevant facts and the legal right to object at the relevant time but failed to do so and therefore, is hit by the Doctrine of Waiver. The Learned Counsel concluded that between December 2022 to January 2023, the Appellant had given an OTS Proposal on 09/12/2022 and 30/01/2023. The OTS Proposal amounts provided therein were Rs. 80 Crores and Rs. 90 Crores respectively. The Resolution Plan amount by the SRA was Rs. 81.65 Crores, which clearly shows that the Appellant was aware of the contents of the Resolution Plan. It is vociferously argued by the Learned Counsel that without being aware of the contents of the Resolution Plan, there is not logical conclusion as to how the Appellant arrived at an OTS Settlement amount of Rs. 90 Crores when the debt outstanding is Rs. 333.61 Crores (as on 31.10.2023. NCLAT stated that From the aforenoted minutes, it is clear that the minutes of the 11th Meeting of the CoC held on 14/12/2022 stood confirmed; that the Appellant wanted to file an Implead Application opposing the approval of the Resolution Plan; that the RP appraised the CoC regarding the mail sent by the Appellant herein to SBI on 30/01/2023, regarding his OTS offer. This establishes that the Appellant was aware regarding the CoC approval of the Resolution Plan; that CIRP period was sought to be extended. Further, the Appellant herein cannot be said to be prejudiced or his legal right having been injured on account of the Appellant not attending the 11th CoC Meeting at 3.00 p.m. Be that as it may, we find force in the contention of the Learned Counsels for the Respondents that the change in the timing was also intimated and it was the Appellant who did not choose to join the link. The voting sheet enclosed with the material on record establishes that Regulation 26 of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 was not violated. Section 25 (2) and Regulation 21 have been complied with by the Respondents as the contents of the Notice for the Meeting and presenting all Resolution Plans at the Meetings of the CoC was duly done by the RP. Therefore, we are of the considered view that there was no violation of any Regulation of the IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 to warrant our interference in the approval of the Resolution Plan. Also, In the instant case, there is clear cut evidence that the Appellant was never denied participation in any of the Meetings and infact had attended all the Meetings, except the 11th CoC Meeting for which, Notice was duly served to the Appellant. The prayer in the instant case is not that the Appellant was not allowed participation in the CoC Meetings, but rather that the process in the approval of the Plan is not in accordance with the Code. In the attendant case, the Appellant was well aware of the Resolution Plan and was part of all the discussions with respect to the evaluation matrix. It is significant to mention that the Appellant had not made any request seeking for the Copy of the Resolution Plan. For all the foregoing reasons, we are of the considered view that there is no prejudice or injury to any legal right caused to the Appellant herein and we see no illegality or infirmity in the Common Impugned Order dated 05/07/2023, passed by the Adjudicating Authority and hence, these Appeals fail and are accordingly dismissed. No Order as to Costs. All Connected Pending Interlocutory Applications, if any, are closed.  

Nov 24, 2023

  The brief factual matrix of the case is that the Appellant had initially on 02/04/2011 entered into a Business Transfer Agreement (BTA) with the Corporate Debtor for the purpose of acquiring a hotel project as an ongoing concern for a total Sale Consideration of Rs. 4,80,00,00,000/-, but on 22/03/2013, the BTA was terminated as the transaction was not completed and therefore, the Appellant on 22/07/2013 sought a refund of the total Consideration paid from the Corporate Debtor, under the terms of the BTA. Despite several requests, the Corporate Debtor failed to pay the said amount and responded only on 15/12/2015 whereby, the Corporate Debtor had assured the Appellant that the loan amounting to Rs. 134,64,00,000/- would be repaid. It is submitted that on 12/03/2018 CIRP was initiated against the Corporate Debtor admitting a Section 7 Application filed by ARCIL. It is the Appellant’s case that on 04/07/2018, a Claim was filed for an amount of Rs. 401,03,08,323/- before the Erstwhile Resolution Professional (RP) and was refiled on 10/07/2018 in an electronic form. It is submitted that on 11/07/2018, the Erstwhile RP had sent a Notice to the Appellant for attending the 5 th CoC Meeting scheduled on 16/07/2018. On 19/07/2018, the Erstwhile RP published another list of reconstituted CoC, wherein the admitted Claim amount was Rs. 395,95,77,035/-. The reconstituted CoC was challenged by ARCIL in C.A. 250/2018, which was dismissed by the Adjudicating Authority, vide Order dated 04/10/2018. On 24/11/2018, the Erstwhile RP published a list of Creditors, which included the name of the Appellant under the head of Financial Creditors admitting a Claim amount of Rs. 318,67,44,770/-. NCLAT stated that It is seen from the aforenoted observation that while allowing C.A. (AT) (Ins) 633/2018, this Tribunal noted that there is a dispute as to whether Mahal Hotel Pvt. Ltd. comes within the meaning of ‘Financial Creditor’ or not, and has concluded that ‘further, once a decision was taken by the Committee of Creditors to call for a Meeting for removal of Mr. Koteswara Rao Karuchola as RP, it was improper for him to include Mahal Hotel Pvt. Ltd. as Financial Creditor of the Member of the Committee of Creditors. Further, money laundering case having been initiated against Mahal Hotel Pvt. Ltd., the said Hotel cannot be allowed to be Member of Committee of Creditors’. It was also observed in paras 11 and 12 that the Adjudicating Authority had failed to notice the aforesaid facts and circumstances and without going into the question of delay in inclusion of Mahal Hotel Pvt. Ltd. as Financial Creditor, has decided the Claim and this Tribunal has set aside the Order dated 04/10/2018, whereby the Adjudicating Authority has directed the RP to revise the Claim submitted by Mahal Hotel Pvt. Ltd.. Therefore, it is crystal clear that the Order of this Tribunal dated 18/11/2019 has set aside the finding of the Adjudicating Authority revising the Claim of the Appellant herein without granting any liberty to once again approach the Adjudicating Authority for adjudication of its Claim. As this Tribunal had examined whether the Appellant is a Financial Creditor within the meaning of Section 5 (7) of the Code, the Appellant herein ought to have preferred an Appeal under Section 62 of the Code. It is not in dispute that the Appellant did not challenge these findings by way of an Appeal. Therefore, we find force in the contention of the Learned Counsel for the Respondent that as the Order dated 18/11/2019 has attained finality and the reliefs sought for by the Appellant namely, inclusion of its Claim as a Financial Creditor and as a Member of the CoC, cannot be reargued at this belated stage. It is also brought to the notice of this Bench by that the Appeal challenging the rejection of the Resolution Plan by the Adjudicating Authority vide Order dated 09/06/2023 in C.A. (AT) (Ins) No. 163 & 183/2023 has been allowed by this Tribunal on 06/10/2023 and the ‘Plan’ has since been implemented. For all the foregoing reasons, the Company Appeal (AT) (CH) (Ins) No. 225/2023, is accordingly dismissed. No Order as to Costs. All connected pending Interlocutory Applications, if any, are closed.  

Nov 24, 2023

  The facts giving rise to this Appeal includes that The Appellant No. 1 and the Respondent No. 2 are the real brothers. The Respondent NO. 1 Company is the company owned by the family members of the Appellant No. 1 and the Respondent No. 2. The Respondent No. 1 Company is the real estate company. The Respondent No. 2 had committed various illegalities in the Respondent No. 1 company, whereby reducing the shareholding of the Appellant No. 1 from 33.53% to 17.44%. In addition, the Respondent No. 2 had also sold the properties of the Respondent NO. 1 Company without the consent of the Appellant No. 1. Further case is that the Respondent No. 1 had not filed the response to the said Company Petition. The Respondent No. 1 filed an application for seeking condonation to file the response of the said Company Petition which was closed by the Ld. NCLT on 30.08.2018. It is pertinent to mention that the matter between the Appellant No. 1 and the Respondent No. 2 was settled on the basis of two Compromise Deeds dated 11.04.2018 and 31.05.2018. Both the Respondents i.e. the Respondent No. 1 and Respondent No. 2 were to pay back the amount of Rs. 55 Lacs and Rs. 1.91 Crores as per the Minutes of Meeting dated 31.05.2018. However, the Respondent No. 1 and Respondent No. 2 could only pay a sum of Rs. 20 Lacs, therefore amount of Rs. 55 Lacs and Rs. 1.70 Crores were still payable to the Appellant No. 1, which, till date the Respondent No. 1 and 2 failed to pay back, therefore, the Appellant No. 1 had filed a Petition under Section 7 of the IBC, 2016 before the NCLT at New Delhi Bench i.e. C.P.(IB) No. 1420(PB)/2019 against the Respondent No. 1. The said IBC Petition was allowed to be withdrawn by the NCLT on the ground that the Respondent No. 1 was not the Financial Creditor in terms of the IBC. However, the liberty was granted to the Appellant No. 1 to pursue his remedy in accordance with law. In the meanwhile, when the matter i.e. Company Petition had come up for hearing before the NCLT, the Respondent No. 2 had addressed that the said Company Petition may be dismissed as there was already a compromise between the Appellant and the Respondent No. 2 on 11.04.2018 and which was also recorded before the Ld. Civil Judge, Gurgaon and not only that the noncompliance of the same was brought before the Hon’ble High Court of Punjab and Haryana at Chandigarh in Writ Petition bearing No. CWP-6578/2018(O&M) dated 20.04.2018. Therefore, in view of the compromise being arrived between the parties, there is no purpose for the present petition to continue and the same may be dismissed. Further case is that the Appellant had also placed on record the Rejoinder of the said Petition. In the rejoinder, the fact of filing of the said IBC Petition was not brought on record before the NCLT. It was also intimated that the Respondent No. 2 is wrongly relying on Compromise Deed dated 11.04.2018. The Respondent No. 2 has concealed that there is a subsequent Compromise deed dated 31.05.2018, whereby the Respondent NO. 1 and Respondent No. 2 were liable to pay an amount of Rs. 55 lacs and Rs. 1.70 Crores to the Appellant No. 1. Till the said amount is not paid, there is a continuous cause of oppression and mismanagement in the said Company Petition and the said Company Petition cannot be disposed of without addressing the complete cause of the Appellant No. 1. It was also brought on record into the notice before the NCLT that in response to the said IBC Petition, the Respondent No. 2 had admitted in the reply that the amount of Rs. 55 Lacs and Rs. 1.70 Crores is liable to be paid after the Appellant No. 1 performing certain obligations. Further case is that the Appellant No. 1 is ready to comply any obligation as referred in the said response/reply filed by the Respondent No. 1 provided the said amount is paid by the Respondent No. 1 and Respondent No. 2 to the Appellant No. 1.  Since the Respondent No. 1 is a closely held company owned by the family members. The dispute is between the two brothers. The entire cause can be settled, if as per the admission of the Respondent No. 1 and Respondent No. 1, the amount of Rs.55 Lacs and Rs. 1.71 Crores is paid to the Appellant No. 1. Further, even pending the Execution Petition before the Ld. Civil Judge, Gurgaon or before the Hon’ble High Court of Punjab and Chandigarh, the Appellant No. 1 continue to have the shareholding in the Respondent No. 1 Company and the directorship. In that cause, due to both the brothers had loggerheads, the affairs of the Respondent No. 1 Company would continuously be prejudiced. NCLAT stated that After hearing the parties and going through the pleadings made on behalf of the parties, we are of the considered view that the Tribunal while passing the impugned order had rightly taken note of the fact that in view of the settlement between the parties and as recorded by Hon’ble High Court of Punjab & Haryana, the said allegations cannot be gone into further and in the circumstances in view of the compromise arrived at outside the Tribunal and as recorded by Hon’ble High Court of Punjab & Haryana passed vide order dated 20.04.2018 as well as Ld. Civil Judge, Gurugram on 11.04.2018 nothing survives in the Company Petition. Keeping in view of the aforenoted facts, we agree with the reasons given by the NCLT. Therefore, the impugned order dated 30.09.2019 passed by the National Company Law Tribunal, Bench No. III, New Delhi in C.A.311/CIII/ND/2018 and C.P.81/241/242/ND/2018 is hereby affirmed. The instant Appeal is hereby dismissed. No order as to costs.  

Nov 23, 2023

  Brief facts necessary to be noticed for deciding these Appeals includes that Corporate Insolvency Resolution Process against the Corporate Debtor – Shivaji Cane Processors Limited was initiated by an order dated 18.02.2021 passed by the Adjudicating Authority on an Application under Section 7 filed by ASREC (India) Limited (Financial Creditor). Mr. Ritesh R. Mahajan was confirmed as RP.  In response to Invitation for Expression of Interest (“EoI”), Puro Naturals JV a Joint Venture between three entities filed a Resolution Plan. After discussion in the 5th Meeting of the Committee of Creditors (“CoC”) dated 19.07.2021, the Resolution Applicant revised the Resolution Plan to Rs.43.82/- crores and submitted its final Resolution Plan on the basis of inputs by the CoC on 29.07.2021. In the 6th CoC Meeting held on 30.07.2021, Resolution Plan was discussed and was passed with 78.03% voting. Respondent Nos.1 and 2 namely – Shree Warana Sahakari Bank Limited and Kolhapur Urban Co-operative Bank having the vote share of 11.13% and 10.84% respectively, dissented with the Resolution Plan.  After approval of the Resolution Plan, RP filed IA No.2165 of 2021 under Section 30, sub-section (6) for approval of the Resolution Plan before the Adjudicating Authority. Respondent No.1 - Shree Warana Sahakari Bank Limited filed IA No.112 of 2022 seeking to oppose the Resolution Plan. Similarly, IA No.963 of 2022 was filed by Kolhapur Urban Co-operative Bank – Respondent No.2 seeking to oppose the approval of the Resolution Plan. The RP filed reply to the IAs filed by both the dissenting Financial Creditors.  The matter was heard and reserved on 20.01.2023 by the Adjudicating Authority. Thereafter on 14.03.2023, the matter was listed by Adjudicating Authority for clarification by Successful Resolution Applicant (“SRA”). The SRA by way of clarification, offered to make full payment to the dissenting Resolution Applicant within 90 days of the approval of the Resolution Plan. On 01.05.2023, the impugned order was passed rejecting the Application filed by the RP for approval of the Resolution Plan on the ground that Resolution Plan seeks to extinguish the personal guarantees and securities without the consent of dissenting Financial Creditors. NCLAT stated that In view of the above very basis of the order of the Adjudicating Authority, rejecting the Resolution Plan submitted by the Successful Resolution Applicant having been knocked out by judgment of this Tribunal dated 21.08.2023, the order of Adjudicating Authority is clearly unsustainable. The present is a case where CoC deliberated over the issue and on such deliberation and inputs, the Successful Resolution Applicant submitted revised Resolution Plan and the Resolution Plan dealt with security interest and the personal guarantee also. We, thus, answer Question No.(I) holding that Resolution Plan in question has consciously dealt with securities and personal guarantees given to the Financial Creditors including the dissenting Financial Creditors and the said clauses of the Resolution Plan do not contravene any provisions of Section 30, sub-section (2) as well as CIRP Regulations, 2016. The view of the Adjudicating Authority that Resolution Plan is contrary to provisions of Section 30, sub-section (2) is unsustainable and deserved to be set-aside. It is relevant to notice that Resolution Plan submitted by Successful Resolution Applicant was approved by the CoC in the meeting dated 30.07.2021 and RP filed application for approval of Resolution Plan being IA No.2165 of 2021 immediately thereafter. The Corporate Debtor was engaged in sugar industry and was engaged in cane process. Sugarcane season has already begun as has been submitted by learned Counsel for the Appellant and inspite of the Plan having been approved on 30.07.2021 and 02.08.2021, the creditors including the Farmers are waiting for the amount to be paid and due to erroneous order passed by the Adjudicating Authority, rejecting the Resolution Plan, the Corporate Debtor could neither be revived nor creditors can be paid. The Adjudicating Authority with regard to concession and relief has already observed that the Resolution Applicant will approach the concerned Authority after the sanction of the Plan, if any hinderance is faced by the Resolution Applicant. Thus, no further orders are required with regard to relevant concession and relief. We having held that Resolution Plan being fully in compliance with the provisions of Section 30, sub-section (2) and Regulation 38 of the CIRP Regulations, we are satisfied that Resolution Plan deserves to be approved by the Adjudicating Authority itself and Adjudicating Authority committed error in rejecting the IA No.2165 of 2021 filed by the RP for approval of the Resolution Plan. In view of the fact that more than two years have passed from the approval of the Resolution Plan by the CoC and all creditors are waiting for the amount to be paid and Corporate Debtor is waiting for being revived, who could not be revived due to order impugned, we are of the view that Resolution Plan submitted by Puro Naturals JV be approved.  In the result, all the Appeal(s) are allowed.  

Nov 15, 2023

  Facts include that the The Appellant in Company Appeal (AT) (Insolvency) No. 1506 of 2022 i.e. ‘Anand Infoedge Pvt. Ltd.’ was allotted land measuring 100,980 sq. mtrs. bearing Plot No.1, Sector 143 Noida by the New Okhla Industrial Development Authority by Lease Deed dated 21.08.2008. ‘Anand Infoedge Pvt. Ltd.’ was given possession on 28.08.2008. ‘Anand Infoedge Pvt. Ltd.’, the lessee of the land entered into Collaboration Agreement with ‘M/s. Mist Avenue Private Limited’, the Appellant in Company Appeal (AT) (Insolvency) No. 1478 of 2022 (hereinafter referred to as “Mist Avenue”) w.e.f. 26.10.2012 for development of the project land. ‘Mist Avenue’, who under the Collaboration Agreement was given right of the development with 85% share in the land allotted various units in the project between the year 2012 to 2017. The Respondents to this Appeal were allottees of the different units in the project and in pursuance of the allotment i.e. Builder Buyer’s Agreement, various payments were made to the Respondents allottees to the ‘Mist Avenue’. On 27.07.2017, ‘Anand Infoedge Pvt. Ltd.’ entered into another Collaboration Agreement with ‘M/s. Mist Direct Sales Private Limited’ (hereinafter referred to as “Mist Direct”). In spite of 2nd Collaboration Agreement, the project could not be completed. The UPRERA has also revoked the registration of the project vide its order dated 07.12.2019. On 11.10.2021, an application under Section 7 was filed by Mr. Nitin Batra and Ors. who were allottees of 115 units in the project. A joint Section 7 Application was filed to initiate CIRP against three Respondents namely— (i) ‘Anand Infoedge Pvt. Ltd.’ (ii) ‘M/s. Mist Avenue Private Limited’ and (iii) ‘M/s. Mist Direct Sales Private Limited’. Applicants pleaded that the project is being developed by all the Respondents under Collaboration Agreements and a joint Insolvency Resolution Process be initiated against all the three Corporate Debtors. It was further pleaded that the Corporate Debtor No.1 ‘Anand Infoedge Pvt. Ltd.’ holds 99.99% shares in ‘Mist Direct’. In Section 7 Application, reply was filed by all the three Respondents who are Appellants before us. In the Reply, objection was raised by the Appellants that Section 7 Application filed by the allottees of units is not maintainable. The Appellant- ‘Anand Infoedge Pvt. Ltd.’ objected to maintainability of the petition against three Corporate Debtors. It was pleaded that the Appellant ‘Anand Infoedge Pvt. Ltd.’ has not signed or executed agreement with allottees. All the Respondents-Corporate Debtors had independent entities having independent directors and the shareholding of Appellant- ‘Anand Infoedge Pvt. Ltd.’ in ‘Mist Direct’ was transferred two years ago. ‘Mist Direct’ has no connection with ‘Anand Infoedge Pvt. Ltd.’. Appellant- ‘Mist Avenue’ pleaded that the Collaboration Agreement entered with ‘Anand Infoedge Pvt. Ltd.’ was cancelled on 27.07.2017 and ‘Anand Infoedge Pvt. Ltd.’ has already entered into separate Collaboration Agreement with ‘Mist Direct’ and the allottees have been duly informed by ‘Mist Direct’, hence, the Applicants (allottees) have no right to raise any objections against ‘Mist Avenue’. The RERA registration permission to construct and other rights and obligations are solely with ‘Mist Direct’ and not with ‘Mist Avenue’, hence, the application under Section 7 was not maintainable. It was contended on behalf of ‘Mist Direct’ that their application as initially stated to have been filed by 143 allottees/ Financial Creditors. Applicants have numbered joint allottees separate Financial Creditor so as to increase the number of Financial Creditors. In fact, the application was filed only by allottees of 115 units. It was pleaded that five allottees have settled their claims, hence, due to extinguishment of outstanding claim they are not Financial Creditors. It was further pleaded that 11 claims were barred by Section 10A and could not have been filed or entertained. Large number of claims of Appellants were barred by limitation. One claimant Mr. Yarmohammad was disqualified since he has not made the entire payment. The threshold as prescribed under Section 7 of the IBC being not fulfilled, application was not maintainable and deserves to be rejected. Date of default being mentioned as 16.10.2016 and subsequent dates on which possession was to be delivered as per agreement. Applications were barred by time. Adjudicating Authority heard the submissions of the Applicants as well as Respondents and by impugned order dated 21.10.2022 held the application maintainable and directed the application to be listed for hearing on 10.11.2022. Appellants aggrieved by the said order has come up in this Appeal. Nclat stated that are of the view that the Adjudicating Authority did not commit any error in returning the finding that threshold as required by Section 7(1), second proviso is fulfilled. In the present case, the Application under Section 7 is maintainable and objection that application is not maintainable on the ground that it does not fulfil the threshold as provided under Section 7(1) Second Proviso has righty been rejected. In view of the fore-going discussions, we are satisfied that no error has been committed by the Adjudicating Authority in holding that application under Section 7 filed by the Respondents allottees is maintainable. We thus do not find any grounds raised in these Appeals to interfere with the Impugned Order dated 21st October, 2022 passed by the Adjudicating Authority, in result, all the Appeals are dismissed.  

Nov 07, 2023

  Brief facts of the case giving rise to these Appeal(s) are that  The Corporate Debtor approached the Operational Creditor and offered to purchase Digital Migration radio, intrinsically Safe Mission Critical Digital Radio, Tetra portable Terminal its system and application, Mobile Radio, Portable Radio Critical Surveillance & Dispatch System and wireless Video Transmission System and its Accessories. The Corporate Debtor placed purchase order on the Operational Creditor on 26.04.2012, 06.12.2012 and 30.01.2013. Pursuant to the purchase order, the Operational Creditor supplied and delivered the goods to the Corporate Debtor and issued several invoices beginning from 07.12.2012 to 24.04.2013. The Corporate Debtor failed and neglected to make the full payment towards the invoices. Certain part payments were made and after adjustment of the part payments a sum of USD 1,441,490.78 was due and outstanding during the end of 2013. The Operational Creditor continuously followed with the Corporate Debtor for payment. The Corporate Debtor issued a ‘Guarantee Letter’ dated 31.12.2013 and undertook to pay outstanding amount of USD 1,441,490.78 before 15.04.2014. The Corporate Debtor, however, failed to make the payment and thereafter issued various acknowledgement in the year 2014 and 2015. Vide letter dated 29.09.2014, the Corporate Debtor wrote that they will release all the outstanding payments before 31.10.2014 to the Operational Creditor. The Corporate Debtor once again on 02.04.2015 wrote that all pending outstanding payments shall be paid. The Corporate Debtor again vide letter dated 17.09.2015 acknowledged the outstanding debt and assured the Operational Creditor that they will pay approximately an amount of USD 160,000,00/- by the end of October 2015 and also an amount of USD 200,000.00 during the month of November and December 2015. The Corporate Debtor, however, failed to make the payments. The learned Counsel for the Operational Creditor issued a statutory notice under Section 433, 434 and 439 of the Companies Act, 1956 and vide their letter dated 26.08.2016 demanded payment of USD 621,348.05 along with interest. The Corporate Debtor replied to the statutory notice vide letter dated 17.09.2016 acknowledging the liability and stated that it shall reconcile their books and ascertain the exact claim due. Before winding up petition could be filed, the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the “Code”) was enforced and the Operational Creditor thereafter issued a Demand Notice dated 15.02.2017 under Section 8 of the code claiming outstanding amount of USD 621,348.05. The Operational Creditor thereafter filed a Company Petition on 30.05.2018. In the Company Petition, parties entered into series of discussions and a consent Terms of Settlement was drawn on 02.02.2019, where the Corporate Debtor agreed to pay the entire amount in six installments. In Terms of the Settlement, the Company Petition was disposed of. Subsequently, on non-remittance of the amount as per the consent Term of Settlement, the Operational Creditor filed an Application to revive the Company Petition, which was revived by the Adjudicating Authority. The Corporate Debtor claimed to have written a letter to its Bankers (Indian Overseas Bank) for transmitting the amount. The Corporate Debtor was advised that approval of Reserve Bank of India (“RBI”) is required for making the payment. The Corporate Debtor claims to have sent some application to RBI for granting approval. However, no remittance of payment had been made.  In the Company Petition on 30.08.2021, the Counsel for the Corporate Debtor made a statement that Corporate Debtor is ready and willing to make payment of USD 621,348.05, which is due and payable, subject to clearance from the reserve Bank of India. The Adjudicating Authority passed an order on 30.08.2021 directing the Corporate Debtor to keep Indian rupee equivalent to this amount in fixed deposit and receipt in this regard to be handed over to the Registry of the Tribunal to establish bona fides of the Corporate Debtor. After the order dated 30.08.2021, an Application was filed by the Corporate Debtor to recall the said order, which Application was disposed of by the Adjudicating Authority on 12.07.2022, refusing to recall the said order. However, Adjudicating Authority directed the Corporate Debtor to make the deposit of the approximate conversion of USD in Indian Rupees and place the same with the Registry within 60 days from the order. The Corporate Debtor did not comply the order dated 12.07.2022, nor deposited the amount. The Company Petition was finally heard by the Adjudicating Authority and by the impugned order dated 12.07.2022, the Adjudicating Authority after hearing the parties took the view that the Corporate Debtor having expressed his willingness to deposit the amount, have not committed default and failure of the Corporate Debtor in discharging the admitted outstanding debt has become a force majure in this particular case. Hence, the Adjudicating Authority did not admit the Application. However, the Adjudicating Authority again directed the Corporate Debtor to deposit the amount in Indian rupees in the shape of an interest bearing deposit (FDR) within 60 days. The Adjudicating Authority, refused to initiate the CIRP. In view of our foregoing discussions, we are of the view that present is a fit case to admit when inspite of several promises and acknowledgement, the Corporate Debtor failed to pay the outstanding debt. The Corporate Debtor also has not complied with the order of the Adjudicating Authority directing for depositing the amount equivalent to Indian Rupee in the Court, instead it cited certain regulatory procedure in obtaining the permission for remitting the amount, which order was also not complied by the Corporate Debtor. NCLAT stated that they  are of the view that Adjudicating Authority ought to have admitted Section 9 Application.  In result, we partly allow the Company Appeal (AT) (Ins.) No.1116 of 2022 and set aside the order of the Adjudicating Authority, insofar as it refused to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. Rest of the order of the Adjudicating Authority is affirmed. We dispose of the Appeal in following manner:  Company Appeal (AT) (Ins.) No.1116 of 2022 is partly allowed. The order of the Adjudicating Authority refusing to initiate CIRP is set aside and further following directions are issued: Company Appeal (AT) (Insolvency) Nos.1116 & 1523 of 2022 30 (a) The Adjudicating Authority shall pass an order of admission under Section 9 of the Code within 60 days from the date when copy of the order is produced before it. (b) Within 60 days, it shall be open for Corporate Debtor to make the payment by remittance of the amount to the Operational Creditor and file a proof before the Adjudicating Authority.  Company Appeal (AT) (Ins.) No.1523 of 2022 is dismissed.  

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