Seradena’s Post

Considering the issues faced by the regular taxpayers and GST authorities faced during investigation, the CBIC has issued guidelines which are to be followed by CGST field officers to maintain ease of business #VJMglobal #business #guidelines #taxpayer #cgst #cbic

Dispute on Contractual Conditions on Place of Delivery and Obligation on Transport of Goods is “Pre-Existing Dispute” under IBC: NCLAT Read More: https://lnkd.in/gekzF8wi #contractual #delivery #obligation #transportofgoods #ibc #nclat #taxscan #taxnews

Brief details This is an application filed on behalf of the ex-management of the CD with a prayer to allow the Applicants to place the settlement proposal under Section 12A of IBC, 2016 before the COC for voting and allow consequent withdrawal of the CIRP. The main contention of the Applicant is that Resolution Plan had not attained finality at the time of our order dated 23.01.2024. Main point of applicant: That the financial terms presented by the Applicant are much better in terms of value as well as the amount of equity invested in the plan filed by the CD. Case law Shaji Purushothaman v. Union of India & Ors, Company Appeal (AT)(Ins) No. 921 of 2019 -- The decision to allow settlement plan submitted by the suspended Directors is strictly in the domain of the COC. The above view was affirmed by the Hon'ble Supreme Court. Points by RP CoC of CD has already approved the Resolution Plan and an application under Section 30(6) of IBC, 2016 being C.A. No. 1489 of 2020 for approval of the Resolution Plan was filed by the RP way back on 21.02.2020 and therefore it does not have jurisdiction or authority to consider a settlement proposal. Case Law: “Union Bank v. Mr. Kapil Wadhwan & Ors.”  There is no scope for negotiations once the CoC has approved the Resolution Plan. Relying on the above, the RP submitted that no such directions can be given to COC. There had been an earlier instance where settlement plan submitted by the Applicant was rejected by AA. There had been attempts to impede the progress of CIRP by applications. Proposal under Sec12 A made earlier did not muster adequate votes in the COC and repeated proposals cannot be made. Analysis by Hon Tribunal 1) Right from the inception of CIRP in question, the erstwhile directors had made several attempts to invoke the provisions of Section 12A of the Code. 2) Two earlier application under Sec12 A have already been dismissed. 3) CoC has once considered one such proposal in its meeting held on 19.02.2020 and rejected the same. 4)   the applicants have not shown bonafides for settlement earlier and it is just a repeated process to derail the approval of the Resolution Plan application. Hence Application Rejected/Dismissed as it is devoid of merits. #IBC #LEGAL UPDATES #CIRP #SEC12AIBC #COMPANY LAW avmresolution.com

12.02.2024: Landmark judgment of Supreme Court on: >CIRP Claim filing ‘Form’ is directory, claim must be supported by proof is important >NCLT can recall Resolution Plan approval order passed under Sec. 31(1) of IBC >Claim filed in wrong Form/category would have to be accorded due consideration in the category to which it belongs In this landmark decision, Hon’ble Supreme Court rules that: (i) Even if a claim submitted by a creditor against the #CD is in a Form not as specified in the #CIRP Regulations, 2016, the same has to be given due consideration by the #IRP or the #RP. (ii) If a claim is submitted by an operational creditor claiming itself as a financial creditor, the #claim would have to be accorded due consideration in the category to which it belongs provided it is verifiable. (iii) The use of the words “a person claiming to be an operational creditor” in the opening part of CIRP Regulation 7, and the words “a person claiming to be a financial creditor” in #CIRP Regulation 8, indicate that the category in which the claim is submitted is based on the own understanding of the claimant. (iv) Once the #claim was submitted with proof, it could not have been overlooked merely because it was in a different Form. The Form in which a claim is to be submitted is directory. What is necessary is that the claim must have support from proof. (v) If any such shortcoming appears in the resolution plan, it may send the resolution plan back to the #COC for re-submission after satisfying the parameters so laid down. (vi) A Court or a Tribunal, in absence of any provision to the contrary, has inherent power to recall an order to secure the ends of justice and/or to prevent abuse of the process of the Court. (vii) Even in absence of a specific provision empowering the Tribunal to recall its order, the Tribunal has power to recall its order. (viii) However, such power is to be exercised sparingly, and not as a tool to re-hear the matter. (ix) The recall application was maintainable notwithstanding that an appeal lay before the #NCLAT against the order of approval passed by the Adjudicating Authority. Read here complete summary: https://lnkd.in/g4txf4VW

 ROC Adjudication Order A penalty of Rs. 12,00,000 was imposed on the Company and officers in default for not filing Form BEN 2 and not maintaining required compliance as required under Section 90 of Companies Act, 2013. https://lnkd.in/g2wH9hr6 The structure of Significant Beneficial ownership is as below:

#mca #companiesact #companieslaws MCA have 4 Centres for Form processing & Scrutiny 1. CRC (Central Registration Centre) - For Incorporation of companies of every state 2. CPC (Central Processing Centre) - For Processing of other E-forms of every state 3. CSC (Central Scrutiny Centre) – For scrutiny, inspection, notice of every form of every state 4. C- PACE (Strike-off of Companies) – For closure/striking-off of companies of every state

𝐁𝐑𝐒 𝐕𝐞𝐧𝐭𝐮𝐫𝐞𝐬 𝐈𝐧𝐯𝐞𝐬𝐭𝐦𝐞𝐧𝐭𝐬 𝐋𝐭𝐝. 𝐯𝐬. 𝐒𝐑𝐄𝐈 𝐈𝐧𝐟𝐫𝐚𝐬𝐭𝐫𝐮𝐜𝐭𝐮𝐫𝐞 𝐅𝐢𝐧𝐚𝐧𝐜𝐞 𝐋𝐭𝐝. 𝐚𝐧𝐝 𝐀𝐧𝐫., the Supreme Court clarified that a guarantor remains liable unless explicitly discharged in the resolution plan. The discharge of the principal borrower does not automatically release the guarantor. Simultaneous CIRP proceedings against both the corporate debtor and the guarantor are permissible. The guarantor's right of subrogation under Section 140 of the Indian Contract Act, 1872, was upheld, and the inclusion of a corporate debtor's assets in the CIRP of a corporate guarantor is not automatic but case-specific. This judgment provides crucial clarity on guarantor and borrower responsibilities under the IBC. #SupremeCourt #IBC #InsolvencyLaw #GuarantorLiability #CorporateDebtor #CIRP #SubrogationRights #IndianContractAct #LegalClarity #FinancialLaw #InsolvencyProceedings #ipibc

CBIC recently issued Instruction No.01/2024-GST dated 30.5.24 providing guidelines on initiating recovery proceedings under the CGST Act, 2017. Recovery typically commences after three months from demand order service, except in exceptional circumstances like revenue risk or insolvency. The decision for early recovery must be justified and approved by higher authorities to safeguard against arbitrary actions. Recent cases show early recovery initiation, yet high courts emphasize recovery post three-month period unless justified in writing for revenue protection. Notably, instructions do not address recovery post first appeal orders due to pending formation of GSTAT. Stay informed with our detailed alert on this matter. Adv Ankit Kanodia #gst #gstupdates #calcuttahighcourt

🚚 NCLAT Delhi Ruling: Pre-Existing Dispute in Contractual Delivery Obligations 🚚 The Hon’ble Tribunal has held that a dispute concerning contractual conditions and delivery obligations for the transport of goods qualifies as a “pre-existing dispute”under the Insolvency and Bankruptcy Code (IBC). This ruling provides crucial clarity on the interpretation of pre-existing disputes, which can significantly impact the initiation of insolvency proceedings. It underscores the importance of thoroughly documenting and addressing contractual terms and obligations to avoid potential legal conflicts. 🔗 Details of the order: https://lnkd.in/gEq-UpqT #LegalUpdate #NCLATDelhi #InsolvencyLaw #ContractLaw #LegalUpdate #SupremeCourt #IndustryInsights #Insolvency  #Seradena

When IPC and BNS sections collide... Ever wondered how IPC and BNS sections compare? This table is a hilarious (and accurate!) take on the differences. #IPC #BNS #Humor #Legal